SCOPE OF THIS CHAPTER
This procedure applies to all decisions to Look After children.
It should be read in conjunction with the Care and Supervision Proceedings and the Public Law Outline.
A child who is dealt with by a court by way of a remand to local authority accommodation or a remand to youth detention accommodation will be a looked after child. The care planning requirement will be amended in relation to such children - see Remands to Local Authority Accommodation or to Youth Detention Accommodation Procedure.
In March 2019, additional information was added in to Section 1.3, Section 20 Accommodation, in line with recent case-law and includes the matters of returning children at the request of the parent (Section 20(8)); threshold criteria for Care and Supervision Order proceedings and further guidance from the High Court regarding consent.
A child may not come into care without the express permission of a Designated Manager (Decision to Look After).
Outside office hours, the Emergency Duty Team can make the decision to Look After a child.
Any decision to look after a child made outside office hours will be communicated by fax or email to the relevant team by the beginning of the next working day.
The decision to look after a child will only be made where those making the decision are satisfied that:
Before a decision is made to look after a child, consideration must be given to making arrangements with other extended family members or friends who might be prepared to care for the child without the need for the child to come into care. In these circumstances, care must be taken where the local authority has been involved in the arrangements for the child to be cared for by relatives; the child may be viewed as within the definition of looked after and a legal view may be helpful to clarify the status of the child and the placement. In these circumstances, if the child is regarded as looked after and placed with a relative or friend, the Placements with Connected Carers (Reg 24 Placements) Procedure.
Alternatively, the child may come within the definition of privately fostered after 27 days, in which case the Private Fostering Procedure will apply.
NB Any arrangements whereby the child is not regarded as Looked After would have to be agreed with the parent or a person with parental responsibility, and the social worker must be satisfied that such an arrangement is sufficiently secure to meet the child's needs and is supported by a child in need plan.
If no such arrangement can be identified or such an arrangement would not meet the child's needs, the child's social worker, with his or her team manager, should consider:
Where it is considered that care proceedings should be initiated to secure the child's placement, see also Care and Supervision Proceedings and the Public Law Outline.
N.B. Any decision that a child should be the subject of Care Proceedings should have regard to the requirements of the Public Law Outline, and in particular the Pre-Proceedings Checklist which is set out in the Care and Supervision Proceedings and the Public Law Outline.
All decisions made should be recorded on the child's electronic record, including the reasons for reaching the decision. (See also Section 1.3.2, Recording Parental Consent).
There are many scenarios in which section 20 is used positively and these include situations of family support (e.g. Short Term Breaks) and 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; 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’, it 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 sometimes be difficult to determine, as some individuals have 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.
(1) Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid.
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.
In relation to children where Care Proceedings are being considered to secure the child's placement, see also Care and Supervision Proceedings and the Public Law Outline.
In all cases, if it is agreed that the child should become Looked After, the child's social worker will draw up a draft Care Plan (see Section 2, The Care Plan) with clear timescales and a statement as to whether the child's needs would best be met in a family placement or residential care.
If a foster or residential placement is required, the relevant procedure to be followed, including the need to hold a Placement Planning Meeting, will be found in the Placements in Foster Care Procedure or the Placements in Residential Care Procedure.
Where a decision is made to pursue a Looked After placement with a relative or friend (or the child's placement with a relative or friend is judged to be a Looked After placement), an immediate assessment of the relative/friend must be undertaken. See Placements with Connected Carers (Reg 24 Placements) Procedure.
For secure placements, see Placements in Secure Accommodation on Welfare Grounds Procedure.
For placements outside the local authority area, see Out of Area Placements 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.
In all circumstances where a decision is made to look after a child, the child must have a Care Plan completed by the social worker and signed by the relevant team manager, the contents of which include:
In addition to the above, a Care Plan should reflect that the court is required under s.8 Children and Social Work Act 2017 amends section 31(3B) Children Act 1989 to consider the ‘permanence provisions’ of the Care Plan for the child:
Where there is no recent assessment in relation to the child, the Care Plan must provide for an Assessment to be completed.
The child's social worker is responsible for drawing up and updating the Care Plan in consultation with:
The social worker should ensure that the child, those with Parental Responsibility and the carer understand the Care Plan and their role in contributing to its implementation.
One of the key functions of the Care Plan is to ensure that each child has a Permanence Plan by the time of the second Looked After Review. The Care Plan is subject to scrutiny at each Looked After Review - see Looked After Reviews Procedure.
The Care Plan should include the arrangements made to meet the child's needs in relation to his or her:
A Care Plan must be prepared prior to a child's first placement, or, if it is not practicable to do so, within 10 working days of the child's first placement.
Any final Care Plan taken before the Court within Care Proceedings must be endorsed and signed by a Designated Manager (Care Plan) and the Independent Reviewing Officer.
All other Care Plans must be endorsed and signed by the social worker's team manager.
The Care Plan must be circulated to the following people:
The child must have a Placement Plan at the time of the placement (this includes the parent's consent to the placement (if applicable) and the child's medical treatment). It should be completed as far as possible before the child is placed or, if not reasonably practicable, within 5 working days of the start of the placement.
The information to be included in the Placement Plan will include:
The Placement Plan will be recorded on the Placement Information Record on the child's electronic database.
Copies of the Placement Information Record must be provided to the child (if of sufficient age and understanding), the parents and must be handed to the residential staff/carers before the child is placed. Where a child is placed in an in-house foster placement, one copy should also be sent to the Fostering Team - to be kept in the confidential section of the foster carer's file and returned at the end of the placement.At the time of the placement, the residential staff/carers should also be given any additional information about details of the child's day to day needs which are not covered by the Placement Information Record but are important to ensure that the staff/carers are in the best possible position to help the child settle in the new placement, for example any particular fears at night-time or the child's favourite toys.
Whenever a new placement is made or the child moves placement, the child's chronology should be updated.
The child's social worker must notify the Reviewing Unit of the placement within two working days of the child becoming looked after, so that the necessary arrangements for the allocation of an Independent Reviewing Officer (IRO) (within 5 working days of the child becoming looked after wherever possible) and the child's first Looked After Review can be made. See the Looked After Reviews Procedure for the procedures relating to reviews, including the responsibility for invitations to reviews.
Before or at the time of the placement, the social worker should request the parent to transfer the child's personal child health record. Where this is lost or not available, the social worker should ask for a replacement to be issued and ask the Designated Nurse for LAC to assist with providing any information to complete the record.
The social worker should also contact the Designated Nurse for LAC to arrange a Health Care Assessment before the placement or, if not reasonably practicable before the first Looked After Review (i.e. within 20 working days of the placement) so that the completion of a health care plan is in time for the child's first Looked After Review. See Health Care Assessments and Plans Procedure.
In addition, the social worker should inform the carer of any medication the child is taking, and ensure that a supply of medication is provided in a clearly labelled bottle with the child's name, required dosage and the time the medication is to be given.
The social worker should also liaise with the Designated Teacher so that a personal education plan (PEP) can be completed as part of the Care Plan before the child becomes looked after (or within 10 working days in the case of an emergency placement) and be available in time for the first Looked After Review. See Education of Looked After and Previously Looked After Children Procedure.
The child's social worker must provide the child and parents with written information about the placement.
The child and parents must also be provided with information about the complaints process and the availability of advocates.
Any changes in a child's legal status as a result of court proceedings must be recorded on the child's electronic record.