In today’s judgment of Re N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112 the President of the Family Division has an important message for family practitioners but, particularly, for local authorities. From paragraphs 157 to 171 he provided a tour de force of the problems with s.20 and the best practice that should be followed.
His message can be summarised thus: “[t]he misuse and abuse of section 20…is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop”. He highlighted in particular the deprivation to the child of having a children’s guardian to represent his interests, and the deprivation to the court of the ability to “control the planning for the child and prevent or reduce unnecessary and avoidable delay” .
Sir James Munby listed the numerous recent cases in which local authorities have been criticised and, in some cases, ordered to pay hefty compensation due to misuse of the s.20 procedure. Close to home, HHJ Lazarus had cause to made such an order in Medway Council v M and T (By Her Children’s Guardian)  EWFC B164 earlier this year.
The President highlighted four particular problems with Local Authority practice:
- The failure to obtain informed consent, which must be “genuine consent, not mere submission in the face of asserted authority” . The President reminded social workers that they must follow the guidance of Hedley J set out in Coventry City Council v C, B, CA and CH  EWHC 2190 (Fam), which he set out at .
- Consent should be in writing and signed by the parents.
- Section 20 arrangements are often left to continue for too long. He remarked that “[s]ection 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 use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.” 
- The reluctance of local authorities to acknowledge that parents may remove their child at any time from s.20 accommodation under s.20(8). Many practitioners will recognise the fetters often imposed on parents to give 7 days’ notice of their intended withdrawal of consent. This practice, the President says, must stop.
In order to address these failings, he has set out five points of good practice:
- 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 its 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”.
- The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).
- 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.’
Local authorities should be under no illusion as to the consequences of a failure to heed the President’s warning. Similarly, practitioners should be armed with this case when dealing with the frequent occurrence of restrictive s.20 agreements or prolonged voluntary accommodation. As the President has said, “the local authority can expect stringent criticism and possible exposure to successful claims for damages” for non-compliance.