As a senior solicitor specialising in children’s cases involving social services, Sandra Bradley is encountering more and more cases where children have been left in legal limbo.
When a crisis happens children are often placed with grandparents or other family members, after the intervention of social services. Often there will be no proper system set up for this placement to be supported or reviewed. Cases can drift on for months or even years with grandparents or other relatives left to try and negotiate arrangements for school, practical support for the child, and contact with parents who are often in conflict with them.
The situation has become much worse over the last 2 years. In a judgment in 2015 the President of the Family Division drew attention to, and severely criticised, the practice of many local authorities in relation to these Section 20 “voluntary care” arrangements. (N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112)
Under Section 20(1) Children Act 1989 a local authority must provide accommodation for children in certain situations, where a person with parental responsibility is unable to do so. By contrast under Section 20(4) a local authority can accommodate a child if they consider that to do so would safeguard or promote the child’s welfare, but only with the parent’s consent.
However, there are many cases where the question of genuine consent is in issue. If a social worker tells a parent that unless they consent they will take court proceedings for removal, this can hardly be called genuine informed consent.
If care proceedings are issued by the local authority the Ministry of Justice decrees that strict timescales of 26 weeks for assessments and decisions must apply. The child will have independent representation through a Children’s Guardian, and robust assessments are usually required so it becomes clear whether the child can return home. If the outcome is not agreed then the court makes decisions based on all the relevant evidence. Parents (and often others) can be properly represented and their cases put before the court. Even if not direct parties in the case, family members’ voices can also be heard.
Since that judgement in 2015, local authorities have been much more reluctant to seek consent to a placement under s20. This can lead to a situation where a family member is asked to look after a child in a crisis, and there is absolutely no legal framework in place.
So what of those cases where a child is moved to relatives and there are no s20 agreements and no care proceedings? Increasingly families find themselves struggling to find the services they need, to help children who can be left in this legal limbo. They receive conflicting advice, often form different professionals. They are frightened to do anything to challenge advice they receive, for fear of their children being removed. With grandparents or other family members having no parental responsibility, some agencies may refuse to deal with them. If the relationship with the child’s parent has broken down, this is a recipe for disaster and uncertain situations can continue indefinitely. And with older children, who may have experienced some trauma or poor levels of parenting up till now, the uncertainty about these plans can have a huge impact.
One of the major principles of the Children Act is that delay is deemed to be harmful for children. Any child removed from the parental home is bound to be confused about what the future holds. They will probably feel emotions of mixed loyalty, on the one hand to their grandparent or other family member who may be caring for them, but also to their parents with whom they may have spent most of their childhood so far. Living with a carer other than their parents can mean that the child`s life is more stable and they will feel more secure, with proper routines, physical care and boundaries. And this may well be very different from the life they have lived up to now.
If you are in a situation where family members are caring for children under an “informal” arrangement like this, please take some legal advice. At Bretherton Law we can advise about the Local Authority’s legal obligations, the assessments and support they should offer, and about applications to the court to protect the child’s position. Don`t delay – the welfare of the child must always be the priority.
Related Pages
Kindship Carers and Special Guardianship Order
