Decision to Look After

1. Decision to Look After Child

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 email to the relevant team by the beginning of the next working day.

2. Considerations Before a Decision to Look After is Made

3. Section 20 Accommodation

See also: Public Law Working Group (PLWG) Best Practice Guidance: Section 20/Section 76 Accommodation. This includes Appendix G3: Section 20 Agreement Template and Appendix G2: Explanatory Note for Older Children.

Note: Legal advice must be sought as appropriate when it is proposed to accommodate a child under Section 20 Children Act 1989.

3.1 Considerations

Recent developments have sought to move away from the idea that Section 20 accommodation should not be used for lengthy periods of time (as propounded by Munby LJ in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112; [2016] 2 WLR 713). However, the courts have also been clear that use of Section 20 should not be used to delay the issue of care proceedings in appropriate cases – see Section 3.5, The use of Section 20 prior to Court Proceedings.

The PLWG Report stated at paragraph 234 that ‘there should be no imposition of time limits for the use of Section 20. There are no legal time limits in place. The imposition of time limits will be counterproductive. However, it is recommended that, where possible, the purpose and the duration of any Section 20 accommodation is agreed at the outset and regularly reviewed’.

King LJ in Re S (A Child) and Re W (A Child) (s 20 Accommodation) stated ‘I can see no inhibition on a Section 20 order being made in appropriate circumstances for a longer period of accommodation provided that proper consideration is given to the purpose of the accommodation and that the regular mandatory reviews are carried out’.

In that case the Court of Appeal allowed appeals against the making of care orders, with the result that the children would remain in long-term placements provided by the local authorities under Section 20. The children were settled in long-term placements which were meeting their respective needs in circumstances where both the placements and the accompanying care plans were supported by the parents.

Public Law Working Group (PLWG) Best Practice Guidance: Section 20/Section 76 Accommodation states that 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 all cases the context and purpose for which Section 20 is being considered should be identified. This may be short-term accommodation during a period of assessment or respite; alternatively, it may be a longer period of accommodation, including the provision of education or medical treatment.

Particular regard must be paid to the child's age. Different considerations, including the purpose and duration, may be heavily influenced depending on the age group of the relevant child. The PLWG Best Practice Guidance advises considering the groups as follows (a) newborn and very young babies, (b) toddlers up to five years of age, (c) six years' old to preteens, (d) teens but under sixteen years' old, and (e) sixteen years' old or older when the child can consent to accommodation. The voice of the child must be clearly recorded and stated.

The Best Practice Guidance states that separation of a newborn or a young baby from their parents is scarcely appropriate under the provisions of Section 20. The circumstances in which this is appropriate are very rare. The (limited) appropriate use of Section 20 in this context may include circumstances where the parents need a very short period in a residential unit to prepare for the child to join them, or if a carer needs to undergo a short programme of detoxification or medical treatment. In appropriate pre-birth cases, discussions about the use of Section 20 can commence some time prior to birth so that those with parental responsibility have time to consider all the options and be assisted in making an informed decision. However, agreement to a child being accommodated can only be given once the child is born.

Any immigration issues concerning the children, the family and any adults who may be caring for the children must be established.

Within each local authority, the use of Section 20 should be monitored by senior management, although this may be delegated.

3.2 Parental Responsibility

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 [2018] 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.

3.3 Obtaining Parental Consent

Obtaining parental consent as a matter of good practice remains an essential part of Accommodating a child under this part of the Children Act 1989. 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 legal 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. The local authority should ensure that consent is not given under duress or compulsion to agree (whether disguised or otherwise). Consent may not be valid if given in the face of a threat to issue court proceedings. Where possible, the person with parental responsibility should have access to legal advice.

Where possible, the purpose and duration of any proposed accommodation should be agreed in advance of the child being accommodated. In case of emergencies, this should be addressed as soon as it is practicable to do so. The purpose and duration of accommodation may change and should be subject to review.

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 the mental capacity to do so. Under the Mental Capacity Act 2005, a person is unable to make a decision if 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.
    The High Court in Re S (Child as parent: Adoption: Consent) [2017] EWHC 2729 (Fam) set out the relevant information that a parent would need to be able to understand, retain and weigh up in order to have competency to consent to the accommodation of a child:
    1. That the child will be staying with someone chosen by the local authority, probably a foster carer;
    2. That the parent can change their mind about the arrangements, and request the child back from accommodation at any time;
    3. That the parent will be able to see the child.
• 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 if 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 them 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?

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). It may be necessary to put in place such support as is necessary to ensure that the mother in such circumstances can make an informed decision. This may include referral to adult or advocacy services, engaging the services of an intermediary or involving other reliable family members.

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 Section 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.

3.4 Recording Parental Consent

Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 set out good practice in the recording of parental consent to a Section 20 agreement:

• Wherever possible the agreement of a parent to the accommodation of their child under Section 20 should be properly recorded in writing and evidenced by the parent's signature;
• The written document should be clear and precise as to it terms, drafted in simple and straight-forward language that the particular parent can readily understand;
• The written document should spell out, following the language of Section 20(8), that the parent can 'remove the child' from the local authority accommodation 'at any time' without giving notice to the local authority;
• The written document should not seek to impose any fetters on the exercise of the parent's right under Section 20(8);
• The document should make the consenting persons aware that by agreeing to accommodation they are delegating the exercise of that aspect of their parental responsibility to the local authority;
• The document should be signed on behalf of the relevant local authority and by the persons consenting to accommodation;
• Where the parent is not fluent in English, the written document should be translated into the parent's own language and the parent should sign the foreign language text, adding, in the parent's language, words to the effect that 'I have read this document and I agree to its terms';
• Each local authority is encouraged to provide the parties to such agreement with a brief explanatory note or leaflet which is easily understandable and in an appropriate language.

Public Law Working Group Best Practice Guidance: Section 20/Section 76 Accommodation includes a Section 20 Agreement Template and Explanatory Note for Older Children.

3.5 The use of Section 20 prior to Court Proceedings

In Re S (A Child) and Re W (A Child) (s 20 Accommodation) the Court of Appeal made clear that despite the fact that the threshold for care proceedings under Section 31 Children Act 1989 was satisfied on the basis that the ‘harm or likelihood of harm’ was attributable to ‘the child’s being beyond parental control’, the children in that case could continue to be accommodated on a long-term basis under Section 20 with parental agreement, without care proceedings being issued.

However, in cases where there is a need for care proceedings to be issued, then the courts have made clear that Section 20 should not be used to delay the proper issue of care proceedings. 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 Supreme Court in Williams – v- London Borough of Hackney stated that, although the object of Section 20 accommodation is partnership with the parents, the local authority have also to be thinking of the longer term. There are bound to be cases where that should include consideration of whether or not the authority should seek to take parental responsibility for an accommodated child by applying for a care order.

The Court stated that care proceedings have obvious advantages for the child. They involve a rigorous scrutiny of the risk of harm to the child’s health and development if an order is not made, of the assessment of their needs and of the plans for their future. Their interests are safeguarded by an expert children’s guardian. If an order is made, it means that the local authority have parental responsibility for the child and can put their plans into effect. There are also advantages for the parents and for the wider family. The parents are entitled to legal aid. Their rights are safeguarded in the proceedings. Even if a care order is made, the court may make orders about their continued contact with the child.

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.

3.6 Reviews of Section 20 Accommodation

The purpose and duration of any accommodation should be regularly reviewed whilst the child is accommodated. This may change with the changing circumstances of children. The frequency of such reviews should be agreed at the time that the agreement is signed and recorded in that document. The appropriate frequency will depend on the facts of each case. Generally longer-term provision of accommodation can be reviewed in line with looked-after child reviews; short-term provision of accommodation may require more frequent reviews. The accommodation should be reviewed as soon as it is practicable when there has been a material change in the circumstances.

It must be made clear that those agreeing to the accommodation may ask for a review at any time. The IRO should ensure that the accommodation is reviewed at a frequency in line with the individual needs of the child. The review should involve all persons capable of continuing to give informed consent to accommodation. Each review must have a clearly identifiable statement of the voice of the relevant child.

During the period of accommodation, the local authority should continually assess the needs of the accommodated child and provide for those identified needs. This includes educational, psychological and therapeutic needs.

4. Actions Required after a Decision to Look After is Made

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 Care Planning Meetings for Children Looked After Procedure) 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 together with other associated arrangements, 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 Persons 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.

5. The Care Plan

See also Remands to Local Authority Accommodation or to Youth Detention Accommodation Procedure, Care Planning for Young People on Remand.

5.1 The Care Plan - Contents

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:

• The child's Placement Plan (setting out why the placement was chosen and how the placement will contribute to meeting the child's needs);
• The child's Permanence Plan (setting out the long term plans for the child's upbringing including timescales);
• The pathway plan (where appropriate, for young people leaving care);
• The child's health plan;
• The child's personal education plan;
• The contingency plan;
• The date of the child's first Looked After Review (within 20 working days);
• The name of the Independent Reviewing Officer.

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.

5.1.1 The Care Plan Where the Matter is Before the Court

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:

1. The provisions setting out the long-term plan for the upbringing of the child - to live with a parent/family member/family friend; adoption; or other long-term care; and
2. The plan's provisions in relation to any of the following:
   1. The impact on the child concerned of any harm that he or she suffered or was likely to suffer;
   2. The current and future needs of the child (including needs arising out of that impact);
   3. The way in which the long-term plan for the upbringing of the child would meet those current and future needs.

5.2 The Care Plan - Process

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:

1. The child;
2. The child's parents and those with parental responsibility;
3. Anyone who is not a parent but has been caring for or looking after the child;
4. Other members of the child's family network who are significant to the child;
5. The child's school or the education service;
6. The relevant health trust;
7. The Youth Offending Service, if the child is known to them;
8. Any other agency involved with the child's care.

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:

• Emotional and behavioural development;
• The child's identity in relation to religious persuasion, racial origin and cultural and linguistic background;
• Family and social relationships; arrangements for contact with sibling(s) accommodated by the authority or another local authority; details of any section 8 order, in relation to a Child Looked After; details of any order in relation to contact with a child in care; arrangements for contact with parents/anyone with Parental Responsibility/ any other connected person; arrangements for the appointment of an Independent Visitor for a Child Looked After;
• Social presentation;
• Self-care skills.

6. Timescales for Completion

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.

7. Approval of the Care Plan

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.

8. Circulation of Care Plan

The Care Plan must be circulated to the following people:

• The child;
• The parent(s);
• Providers/Carers - if no Care Plan has been drawn up prior to the child's placement, the social worker must ensure that the providers/carers understand the key objectives of the plan, and how the placement will help achieve these objectives;
• The Fostering Service, where the child is in foster care. N.B. The Care Plan should be filed in the confidential section of the foster carer's file and returned to the child's social worker when the placement ends;
• The child's Independent Reviewing Officer.

9. Other Required Plans, Documentation and Actions

9.1 Placement Plan (recorded on the Placement Information Record on ICS)

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:

1. How on a day-to-day basis the child will be cared for and the child's welfare will be safeguarded and promoted by the appropriate person;
2. Any arrangements for contact between the child and parents/anyone with Parental Responsibility/any other connected person, including, if appropriate, reasons why contact is not reasonably practicable or not consistent with the child's welfare; details of any contact order (under Section 8 or 34 of the Children Act 1989); the arrangements for notifying any changes in contact arrangements;
3. Arrangements for the child's health (physical, emotional and mental) and dental care, including the name and address of registered medical and dental practitioners; arrangements for giving/withholding consent to medical/dental examination/treatment;
4. Arrangements for the child's education and training, including the name and address of the child's school/other educational institution/provider and designated teacher; the Local Authority maintaining any education, health and care plan;
5. The arrangements for and frequency of visits by the child's social worker; and for advice, support and assistance between visits;
6. If an independent visitor is appointed, the arrangements for them to visit the child;
7. The circumstances in which the placement may be terminated;
8. The name and contact details of the Independent Reviewing Officer, the Independent Visitor if one is appointed, the social worker who will be visiting the child, and the personal adviser for an eligible young person.

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.

9.2 Chronology

Whenever a new placement is made or the child moves placement, the child's chronology should be updated.

9.3 Arrangement of first Looked After Review

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.

9.4 Health Care

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 CLA to assist with providing any information to complete the record.

The social worker should also contact the Designated Nurse for CLA 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.

9.5 Personal Education Plan (PEP)

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 Children with a Social Worker, Looked After and Previously Looked After Procedure.

9.6 Provision of Information

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.

9.7 Changes in Legal Status

Any changes in a child's legal status as a result of court proceedings must be recorded on the child's electronic record.

Further Information

Good Practice Guidance

Public Law Working Group Best Practice Guidance: Section 20/Section 76 Accommodation