Decision to Look After a Child

1. Decision to Look After Child

A decision to Look After a child will normally be made by the Group Manager for the service area requesting the accommodation. The decision should be based on a thorough assessment of the child's needs. If not undertaken in the previous three months, the social worker must undertake an Assessment in relation to the child. The view of the social worker should be that it is necessary to Look After the child because:

• All attempts at early intervention to maintain and support the child with the family have broken down; or
• The child would be at risk of Significant Harm by remaining with the family; or
• The child is disabled and a series of short break placements is necessary to provide respite for their carers.

The decision should only be made where the manager is satisfied that appropriate assessments and consultations have taken place (including as required under the Public Law Outline where Care Proceedings are being considered and in relevant placements chapters) on the necessity, purpose and nature of the proposed placement. In some circumstances a child may be placed in an Unplanned / Emergency or with limited consultations and checks; relevant placements chapters specify where this is possible.

Before a decision is made to look after a child, consideration should be given to other extended family members, friends or Connected Persons who might be prepared to care for the child without the need for the child to be Looked After.

It may be appropriate to convene a Professionals Meetings or Network Meeting at this stage.

Any such placement would have to be agreed by the parent, and the social worker and manager must be satisfied that such an arrangement is sufficiently secure to meet the child's needs and is supported by a Child in Need Service Plan.

See Placements with Connected Persons Procedure.

If no such arrangement can be identified or such an arrangement would not meet the child's needs, the following should be considered:

• The date for the child's admission to the Looked After Service;
• The child's immediate placement needs, including whether a Looked After placement with a relative, friend or Connected Person may be possible;
• The longer term plan;
• A date for the child to return home or when the decision will be reviewed;
• An action plan of support and work to enable the necessary change for the child to return home;
• The obtaining of parental consent to Look After the child and consent to medical care;
• The need for Care Proceedings to secure the child's placement, in which case a Legal Gateway/Planning Meeting should be convened and the requirements of the Public Law Outline considered - see Legal Gateway/Planning Meetings Procedure.

The social worker will be responsible for seeking an appropriate placement for the child and making the necessary arrangements in relation to the placement, in accordance with Section 3.2, Placements of Looked After Children.

Where a decision is made to pursue a Looked After placement with a relative, friend or Connected Person and the placement is likely to be for longer than 16 weeks, the assessment of the relative / friend as a foster carer must be arranged to commence immediately - see Placements with Connected Persons Procedure. Agreement to commence a Reg 24 placement with family or friends must be agreed with the Group Manager and Assistant Director.

2. Obtaining Parental Consent to Look After a Child

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.

A recent Court of Appeal hearing (L B Hackney v Williams & Anor [2017] 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'.

In all cases the context and purpose for which s 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 had 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 s 20. The circumstances in which this is appropriate are very rare. The (limited) appropriate use of s 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.

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.

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.

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.

There are many scenarios in which Section 20 is used positively and these include situations of family support 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 born 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.

Therefore, obtaining Parental Consent as a matter of good practice remains and 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. 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.

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).

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'.

[1] Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid. Recording Parental Consent.

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.

In Re N (Children) (Adoption: Jurisdiction) [2015] 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:

• 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 s.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.

The Use of Section 20 Prior to Court Proceedings

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.

Even where a parent / carer's legal advisor 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.

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.

3. The Care Plan

3.1 The Care Plan - Contents

In all circumstances where a decision is made to look after a child, the child must have a Care Plan, 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.

3.1.1 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 Section 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 they suffered or were 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.

3.2 The Care Plan - Process

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 / 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 education authority;
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.

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 their:

• 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 Looked After Child; 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 Looked After Child;
• Social presentation;
• Self-care skills;
• 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.

Upon completion of the Care Plan / Placement Plan, the worker must also ensure the completion of a detailed Exit Plan showing the clear intentions for any services being offered to the individual child and/or their family.

See Care Plan Guidance.

4. 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.

5. Approval of the Care Plan

Any Care Plan taken before the Court within Care Proceedings must be endorsed and signed by a Designated Manager (Care Proceedings).

All other Care Plans must be endorsed and signed by the social worker's manager.

The Care Plan can be updated by the social worker, with the manager's approval, at any time.

The Care Plan is subject to scrutiny at each Looked After Review.

6. Circulation of the 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 child's Independent Reviewing Officer.

7. Other Required Plans and Documentation

The child must have a Placement Plan (recorded on the Placement Information Record on ICS), 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 Child Arrangements Order; 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 statement of Special Educational Needs;
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.

In addition the social worker should request the parent to transfer the child's Personal Child Health Record and 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 Plan is in time for the child's first Looked After Review.

A Personal Education Plan should 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 for Looked After and Previously Looked After Children Procedure.

In an Emergency (Unplanned) Placement, the information will usually be incomplete but will be completed with the information available at the time. A copy of the Record will be handed to the child's carer and a copy will also be faxed to the relevant social work team.

It is the social worker's responsibility to co-ordinate the process of completing these records. The most appropriate person to gather and/or document some of this information may, however, be the parent, foster carer or the foster carer's supervising social worker.

If a section is not applicable at this stage e.g. the education section in relation to a preschool child, it should be left blank and completed at a later stage if the child remains looked after.

The records should be updated as necessary before every Looked After Review, using supplementary sheets if necessary.

8. Permanence Planning

Permanence for a Looked After child means achieving, within a timescale which meets the child's needs, a permanent outcome which provides security and stability to the child throughout their childhood. It is therefore the best preparation for adulthood.

Wherever possible, permanence will be achieved through a return to the parents' care or a placement within the wider family but where this cannot be achieved within a time-scale appropriate to the child's needs, plans will be made for a permanent alternative family placement, which may include adoption, or, for older children, a stable placement which prepares the child for adulthood.

Also see Care Planning and Permanence Procedures and Permanence Overarching Strategy.

8.1 Summary of Looked After Review Procedures

The Care Plan will be regularly reviewed at Looked After Reviews.

By the time of the second Looked After Review, the Care Plan must contain a plan for achieving permanence for the child within a timescale that is realistic, achievable and meets the child's needs. If the permanence plan is likely to be adoption or long term fostering then the Adoption and Permanency Team should be consulted prior to the Review.

At the third Looked After Review, a Contingency Plan must be made where the plan for permanence has not been achieved.

All subsequent Reviews should review the progress and validity of the Permanence Plan.

The detailed procedure is set out in Looked After Reviews Procedure, Role of the Looked After Review in Achieving Permanence for the Child.

Further Information

Good Practice Guidance

ADCS/Cafcass Practice Guidance for the Use of Section 20

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