The Court of Appeal has made it clear that children being accommodated by the local authority pursuant to section 20 Children Act 1989 should not be allowed to drift in the system, being in foster care on a voluntary basis for over 6 months has been described as a “misuse and abuse of section 20.”.
The Court of Appeal has ruled that any misuse and abuse of section 20 is not just a matter of bad practice, but that it is wrong. It is a denial of the fundamental rights of the parents and the child, the parents may not have access to any legal advice and an independent Children’s Guardian will not be appointed on behalf of the child to represent and safeguard his interests. The Court has issued a stern warning to local authorities that where they fail to follow good practice they can expect to be subject to probing questions by the Court and, if the explanations are unacceptable they can expect to be the subject of stringent criticism and possible exposure to damages.
There have been examples where parents and children have been awarded compensation under the Human Rights Act 1998 as a result of such drift and a failure of local authorities to obtain consent to children being placed in foster care in the correct manner.
The Court has now issued guidelines which all Local Authorities must comply with when accommodating children under section 20:
Wherever possible the agreement should be properly recorded in writing and evidenced by the parent’s signature.
The written section 20 agreement should be clear and precise and drafted in simple straight-forward language that the particular parent can understand.
The written agreement should spell out, using the language in section 20(8) that the parent can “remove the child” from the local authority accommodation “at any time.”
The written agreement should not impose any restriction on the exercise of the parent’s right under section 20(8). Agreements which stipulate a parent must give X days written notice to withdraw their consent are not legally binding and should not be included in the written agreement.
There the parent is not fluent in English, the written agreement should be translated into the parent’s own language and the parent should sign the foreign language text, adding in the parent’s own language, words to the effect that “I have read this document and I agree to its terms.”