What do adoptive parents do when they realise they simply can’t continue caring for their damaged adopted child? They turn to the local authority for help. Too often the local authority places the child in foster care under section 20 of the Children Act 1989. Section 20 allows the local authority to find accommodation for a child who requires it by way of there being no one with parental responsibility for the child, his having been lost or abandoned or the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

The local authority acts as if it has parental responsibility and tries to control all the arrangements for the child. But it doesn’t have parental responsibility. There are a number of recent cases in which strong guidance has been given to local authorities about the disadvantages of the protracted use of section 20.

The case of Northamptonshire County Council v As and Ors [2015] was one in a line of many recent cases to highlight the inappropriateness of children remaining on Section 20 and the delay in local authorities issuing care proceedings.

In this case, as approved by Cobb J in Newcastle City Council v WM and Others [2015] the disadvantages of delaying the issue of proceedings are highlighted. The local authority;

1. Deprives the children of the benefit of an independent children’s guardian to represent their interests,
2. Deprives the court of the ability to control the planning for the child,
3. Deprives the court of the ability to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible opportunity.

The case of Re N (Children: Adoption Jurisdiction) [2015] is yet another example of the increase in judgments regarding lengthy section 20 placements which often leave parents out of the loop with important planning for their child.

This is being seen increasingly in adoption cases whereby families are left without adequate support in order to prevent a potential disruption. Adoptive children often have significant issues which arise from the neglect and/or abuse suffered within their birth families. Sadly, many adoptive parents find out too late that their children are beyond their control and have no alternative but to ask the local authority to find an alternative placement for them.

When a parent asks the local authority to accommodate their child, the correct procedure would be for them to issue care proceedings but we are seeing a huge number of local authorities using section 20 as a way of controlling a placement without the need to actually issue proceedings which in turn deprives the child of all listed above.

In Re N, Sir James Munby, President of the Family Division, stated, “The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights or both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to a successful claim for damages.”

He goes on to say that, “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 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 phrased advisedly and deliberately, a misuse by the local authority of its statutory powers.”

Under section 20, the parents retain parental responsibility for their child and the local authority do not acquire it but parents frequently feel that they are not having a say in contact arrangements or the child’s education and ultimately, if and when the child can be returned to their care. Local authorities are often using parental responsibility to make decisions at the exclusion of the parents without having actually obtaining parental responsibility through a court order.

Helen Jarvis, trainee solicitor at Ridley & Hall, commented, “We are seeing a significant rise in the number of clients who are instructing us are at their wit’s end because of a lack of support for their adopted children. These clients have frequently asked for support at difficult times for their children in order to prevent an adoption disruption. Many of these clients have not had any support provided by their local authorities and therefore the placement has broken down. It is unclear whether if support had been provided, the placements would have been successful.

“Numerous parents ask for different types of support in order to cope with their emotional support including counselling for their child(ren) who have suffered significantly at the hands of their birth families. They ask for support with education and many ask for respite at difficult times. Many local authorities have asked parents to sign a section 20 agreement to place the children in foster care for the parents to then have a great difficulty in getting the child back after they have had a break. Often the child ends up staying away for months and in some cases even years. It seems to be that section 20 is the local authorities answer to families cries for help.

“It remains to be seen what sanctions the local authority could be given in these cases due to the individual circumstances of each case but it is likely that local authorities who continue to misuse section 20 will leave themselves open to widespread judicial criticism and possible exposure to successful claims for damages. This case suggests that for future cases, these arrangements are not going to be accepted by the courts

If you consider that the local authority is misusing their powers under section 20, please contact a member of the Child Care team on 01484 538421. If your query relates to adoption breakdown, please ask to speak to the Community Care team.