SCOPE OF THIS CHAPTER
This practice guidance summarises the key issues for consideration when children are accommodated under Section 20 Children Act 1989.
- General Matters
- Content of Accommodation Agreement
- Placement with Family Members and Friends
Relevant sections of Section 20:
20 PROVISION OF ACCOMMODATION FOR CHILDREN: GENERAL
- Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of:
- There being no person who has parental responsibility for him;
- His being lost or having been abandoned; or
- The person who has been caring for him being prevented (whether or not permanently and for whatever reason) from providing him with suitable accommodation or care.
- A local authority may not provide accommodation under this section for any child of any person who:
- Has parental responsibility for him; and
- Is willing and able:
- Provide accommodation for him; or
- Arrange for accommodation to be provided for him.
- Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section;
- Sub-sections (7) and (8) do not apply whilst any person:
- Who is named in a Child Arrangements Order as a person with whom a child is to live;
- Who is a special guardian of the child; or
- Who has care of the child by virtue of an order made in exercise of the High Court's inherent jurisdiction with respect to children,
agrees to the child being looked after in accommodation provided by or on behalf of the local authority.
- Sub-sections (7) and (8) do not apply where a child who has reached the age of 16 agrees to being provided with accommodation under this section.
2. General Matters
Written agreement - there is no requirement for the agreement to accommodate a child under Section 20 Children Act 1989 to be placed in writing it is, however, good practice to ensure parental consent is recorded in writing and signed by the parents. In an emergency situation it may not be practical to set out the agreement in writing but it is important that all conversations with parents and family members are recorded accurately and that an agreement is then completed within 3 working days. The agreement should not try to seek to impose any time limits on the parents giving notice of their intention to remove the child from Section 20 Accommodation and must specify that the parent can "remove the child" from local authority accommodation "at any time". The agreement also needs to be clear and precise as to its terms and drafted in simple and straight forward language that the particular parent can readily understand.
See the Documents Library for the Accommodation Agreement template.
Parental Responsibility - it is essential to ascertain who holds Parental Responsibility for the child being accommodated when agreeing to accommodate the child under Section 20 Children Act 1989. Any person who has parental responsibility for a child may remove a child from the accommodation provided by the local authority unless another person who also holds parental responsibility, holds either a Child Arrangements Order or is a special guardian. These people can effectively overrule other people with parental responsibility. A mother will always hold parental responsibility for a child (unless the child is adopted). A father will hold parental responsibility if they are married to the mother at the time of the birth, his name was registered on the birth certificate if the child was born after the 1st December 2003 and if there is a parental responsibility agreement in place. (These agreements are very rare).
Police powers - there is a common thought that when the Police use their powers under Section 46 to remove a child that it is then the Police who make the subsequent placement of the child. However, by virtue of Section 46(3)(f) when a child is taken into Police protection by being removed to accommodation which is not provided by or on behalf of a local authority then the Police need to secure that they are moved into accommodation which is provided by the local authority. The Police have to liaise closely with the local authority and it is clear that in the vast majority of cases it will be the local authority who places the child and not the Police.
Sixteen and seventeen year olds - the effect of Section 20(11) Children Act 1989 is that 16 and 17 year olds can accommodate themselves against the wishes of their parents. However the child must understand the consent that they are giving.
Capacity - Section 20 agreements are not valid unless the parent giving consent has capacity to do so, the consent is 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):
- The social worker must first be satisfied that the parent giving consent does not lack mental capacity to do so. Under the Mental Capacity Act 2005, a person is unable to make a decision is they are unable:
- To understand the information relevant to the decision;
- To retain that information;
- To use or weigh that information as part of the process of making the decision; or
- To communicate their decision.
- If one parent with parental responsibility lacks capacity then legal advice should be sought in relation to issuing care proceedings;
- If there is doubt about capacity, no further attempts to obtain consent should be made at that time, and advice should be sought from a manager;
- If satisfied that the parent has capacity, the social worker must be satisfied that the consent is fully informed:
- Does the parent fully understand the consequences of giving such a consent?
- Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
- Is the parent in possession of all the facts and issues material to the giving of consent?
- If not satisfied that the consent is fully informed, no further attempt should be made to obtain consent on that occasion and advice should be sought from a manager and legal advice sought if thought necessary;
- If satisfied that the consent is fully informed, then it is necessary to be satisfied that the giving of such consent and the subsequent removal of the child from the parent is both fair and proportionate:
- What is the current physical and psychological state of the parent?
- If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
- Is it necessary for the safety of the child for her to be removed at this time?
- Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
Under the influence of drink and /or drugs - if a parent is under the influence of drink and drugs and so therefore incapable of consent the child can still be accommodated under Section 20(1)(c) as the parent is prevented from parenting the child with suitable accommodation whilst under the influence. When no longer under the influence and it is still felt necessary to continue the child's accommodation then parental consent must be sought then.
Parents who are not fluent in English - where the parent is not fluent in English it is vital that the parent has a proper understanding of what precisely they are being asked to agree to. The Section 20 Agreement should be translated into the parents' own language and the parents should sign the foreign language text, adding in the parents' language words to the effect that "I have read this document and agree to its terms".
Duration of S20 - Section 20 should normally be used for short-term accommodation particularly if the child is young.
Parents subject to detention under Mental Health Act 1983 (Section 2 and Section 3) - when a parent is detained under the Mental Health Act 1983, they are unlikely to be able to give valid consent to Section 20 accommodation agreement. The parent should also not be treated as either having abandoned the child or being prevented for whatever reason from providing the child with suitable accommodation or care. The local authority should wait a short period without taking care proceedings in order to review the parents' progress in hospital in the event that their ability to care for their child might return. The social worker needs to discuss this with the parents' "responsible clinician". The courts have indicated that a reasonable amount of time maybe seventy-two hours equating this time period with that of the police using their police powers of protection.
Legal advice - it is important to suggest to the parent that if they have a solicitor that they may want to contact them or take advice in relation to their agreement to place their child in local authority accommodation.
Contact and Police bail - on many occasions the local authority will become involved when a parent has been arrested in relation to an offence against a child or one of their children. Quite often the Police will impose bail conditions for the parent not to have any contact with their own child. It is not a criminal offence for a parent to breach bail conditions imposed by the Police. If this happens the option is for the Police to re-arrest the parent and if they wish to have the conditions formally imposed they will need to take the matter to Court. If the local authority feels that it is in the child's best interests for a parent to have contact with a child in breach of the bail conditions then the social worker should approach the Police with a view to them amending the bail conditions. Bail conditions should not be used as an excuse to accommodate a child.
Private fostering - a child is 'privately' fostered if they are under the age of 16 and are cared for by someone other than a parent, someone who has parental responsibility for them or a relative. If the child is disabled then the age limit is 18. A relative is defined as being a grandparent, brother, sister, uncle or aunt and any of these relatives can be full blood, half-blood by marriage or civil partnership. A step-parent is also a relative however only whilst the marriage is in place.
3. Content of Accommodation Agreement
- Legal Status
This Agreement does not alter the legal status of the child/children. This agreement does not give the local authority parental responsibility which remains with the current holders. Any person with parental responsibility can request that this agreement comes to an end (unless opposed by a person who has a Child Arrangements Order or is a special guardian);
- Duration of Agreement
This agreement is not a long term agreement and will be regularly reviewed by the local authority;
- Obligations on the local authority
- Set out the purpose of the local authority in providing the accommodation;
- Set out proposed assessments and timescales;
- Set out proposed viability assessments and timescales;
- Set out the review arrangements.
- Obligations on Parent;
- Contact Arrangements;
- Legal Advice
- It is recommended that the parents obtain legal advice from their solicitor.
See the Local Resources and One Minute Guides for the Accommodation Agreement template.
4. Placement with Family Members and Friends
On occasions the local authority will place the child subject to the Section 20 Accommodation Agreement with family and friends and in such circumstances the placement will be a Regulation 24 placement under the Care Planning Monitoring, Placement and Case Review Regulations 2010. In these circumstances an Accommodation Agreement must still be completed.
However, on other occasions the arrangements for placement within the extended family or with friends will be made by the family themselves and the placement will not be a local authority fostering placement. In these circumstances the local authority may want to draw up an agreement which reflects the legal nature of the placement and also indicates to all parties what the local authority will do to support the placement and to assess the situation further. If the placement is a private fostering placement a referral needs to be made to ensure the appropriate assessments are undertaken. In these circumstances the agreement should set out the following:
- Legal status – state that this is not a placement by the local authority but is a private arrangement made by the persons with parental responsibility and family/friends;
- Financial support – set out what financial support the local authority will give. In these sorts of circumstances the support will usually be Section 17 support on an emergency basis such as for clothing, bedding, beds etc. The local authority may also want to support the placement by providing an allowance equivalent to any benefits that would be payable to the carer whilst their claim for benefits is processed. The agreement needs to set out the financial support to be made by the parents and in particular that any benefits need to be signed over and any financial support in the way of maintenance if any if the parents are working;
- Assessments – the local authority needs to set out what assessments it will undertake and in what timescales;
- Contact – it would not be usual in these circumstances for the local authority to regulate contact however the agreement may want to reflect the arrangements for contact that the family propose.