Section 20 “Agreements” – a further warning
Sir James Munby, President of the Family Division, has issued a stark warning to local authorities regarding the use – or in his words, the misuse – of parental agreements to children being accommodated by the local authority under section 20 of the Children Act 1989.
In Re N (Children: Adoption: Jurisdiction) (a case which is primarily concerned with the appropriateness of a transfer of a case under BIIA to the Hungarian authorities where care proceedings with a plan for adoption in the UK in respect of two Hungarian children had continued for many months in the English courts and had reached the stage of a final hearing before HHJ Bellamy sitting as a Deputy High Court Judge) the President reiterated previous guidance in respect of the importance of local authorities ensuring that parental consent is obtained in proper circumstances. Consideration must always be given to the parent’s capacity to give informed consent and the importance of ensuring that all relevant information is given to the parent in advance cannot be underestimated.
The President also expressed his concern at the frequency with which section 20 agreements are allowed to continue for very long periods before proceedings are issued. He said he is “exceedingly sceptical” that a parent is able to “contract out” of their ability to immediately withdraw their consent to the child remaining accommodated; such a withdrawal should mean that the local authority must immediately return the child to the care of the parent. He was envisaging cases in which a parent agrees to give advance notice to a local authority of their intention to withdraw their consent; a step which inevitably allows the local authority time to make an application to the court for a care order.
The judgment is worth reading in full. The very serious significance of a long period of section 20 accommodation and a failure to properly consider the appropriate jurisdiction for the case at an early stage for these two children, who are foreign nationals, is obvious. The President reinforced the message once again that jurisdictional matters must be raised at an early stage in every case and that the appropriate authority must be immediately informed of any proceedings in respect of European nationals.
The comments in respect of section 20 agreements begin at paragraph 157.