Child: accommodation under section 20.

Harris, Alexandra Conroy

Re CA (A baby) [2012]

High Court Family Division Hedley J

30 July 2012 EWHC 2190 (Fam)

CA is the fourth child of her mother. Her older siblings are the subject of placement orders and have been placed for adoption. The mother had undergone several assessments in proceedings involving the older children and the local authority had determined pre-birth that she would be unable to parent CA. They planned to remove the child as soon as she was fit for discharge from hospital after birth and initiate care proceedings with a care plan for adoption. The mother was aware of the plan to remove the child and had not actively opposed it, although she had not consented to it. The mother was admitted to hospital for emergency surgery in the late stages of pregnancy and CA was delivered. The mother was not able to talk to the social worker immediately after delivery. Later in the day she was able to and refused to consent to the baby being accommodated. Later still, she was administered morphine and saw the social worker again. This time, after discussing the matter on the telephone with a friend and her partner, but not her lawyer, she agreed to the baby being placed in foster care. She had not appreciated that if she had refused, the baby would have stayed with her in hospital and there would have been no grounds for the local authority to seek an order for removal.

The court made an order for a care and placement order on a case which was described as 'overwhelming'. The mother also made a claim for damages for herself and the child for breach of their right to a quiet and family life arising out of the circumstances of the accommodation of the child immediately after birth. The local authority conceded the claim and damages were agreed, but the court took the opportunity to set out guidelines on the use of section 20 of the Children Act 1989:

(i) Every parent with parental responsibility and capacity has the right to consent to the accommodation of his child under section 20.

(ii) The social worker obtaining consent has a personal duty to be satisfied that the parent has capacity to consent.

(iii) The social worker must consider consent actively, taking into account all the circumstances and section 3 of the Mental Capacity Act 2005, particularly the parent's ability to use and weigh all the available information.

(iv) If the social worker has any doubts about the parent's capacity they should not seek consent and should take advice from managers on how to proceed.

(v) If the parent has capacity the social worker must be satisfied that she fully understands the consequences of giving consent, appreciates the range of choices available and the consequences of refusing consent and is in possession of all the information relevant to giving consent.

(vi) If the social worker is not satisfied that the parent fully understands, consent should not be pursued and managers' advice should be sought.

(vii) The social worker must be further satisfied that the giving of consent and the removal of the child is fair and proportionate.

(viii) It may be necessary to consider the physical and psychological state of the parent, whether they have sought advice from their lawyer, family or friends, whether the child needs to be removed at that particular time and whether it would be fairer to proceed by court order rather than agreement.

(ix) If all these matters have been considered and management and/or legal advice taken as necessary, the social worker may act on fully informed consent that has been obtained from a capacitous mother in circumstances where removal is necessary and proportionate.

In the light of this, local authorities may want to act with caution when considering section 20 consent in the aftermath of birth.

Alexandra Conroy Harris, BAAF's Legal Consultant, prepared these notes