This article was first published in 2016 and last updated in January 2018.

Social workers have been regularly criticised in court and by Ofsted in recent years over the inappropriate use of ‘voluntary’ accommodation for children under 20 of the Children Act 1989.

The courts and researchers have cited examples of section 20 accommodation being ‘misused’ in safeguarding contexts to avoid or delay care proceedings, with parents feeling coerced into agreeing to their children being accommodated or children being accommodated long-term without proper care planning.

Latest looked-after children figures show a drop in the use of section 20 arrangements following concerns that practitioners might become reluctant to use this route in circumstances when it is appropriate because of judicial criticism.

Community Care Inform’s Section 20: putting the guidance from case law into practice is written by a family law barrister. It is regularly updated to help you make sense of the latest case law and guidance and ensure you are complying with the law and upholding both a child and their family’s rights.

Here are a few key tips selected from the current guide:

Please note this is not legal advice; social workers should consult their legal teams for advice on the facts of any specific case.

1. Understand how a parent’s right to object works
   

   Until a landmark Court of Appeal case in January 2017 it was understood that parental consent (often in the form of a written agreement) was needed for section 20 accommodation to be lawful. The Court of Appeal found in Hackney vs Williams that the law does not require parental consent to local authority accommodation; instead it is prevented if  a parent objects and is able to provide or arrange accommodation themselves.

   In this particular case, the parents were under bail conditions during police investigations which included all contact with their children being supervised. In these circumstances, their objection did not render the children’s placement with foster carer unlawful, because they could not provide accommodation themselves.

   The Court of Appeal said that this judgment was not “intended to dilute or amend the good practice guidance [on obtaining consent, set out in previous cases] which sits above the bare statutory requirements.” It was ruling on whether the council had acted in breach of the law, which it had not.

2. Be satisfied that a parent has the mental capacity to understand their right to object

   A parent must have mental capacity in order to validly object or consent to their child being accommodated under section 20. Judicial guidance was given in Re CA (2012) after a newborn baby was removed from its mother who was recovering in hospital from medical complications – the court found that she lacked capacity at the time she was asked to make a decision about her child being accommodated.

   The court in Hackney v Williams (mentioned above) noted that it disagreed with the judges in this case that valid consent was necessary for lawful removal under section 20. But it said that in different circumstances it would be good practice and guidance set out by Justice Hedley in Re CA (also referred to as Coventry v C) should be followed when seeking consent.

   Justice Hedley said that social workers obtaining consent are “under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so”.

   It is important to note that capacity can fluctuate and be reduced in high stress situations. This is a particular consideration when parents have mental health problems, learning disabilities, are under 18, or for mothers who have recently given birth but should be kept in mind in all cases. If you have doubts about a parent’s mental capacity, don’t make further attempts to seek consent on that occasion. Seek advice from a team leader or manager; managers should get legal advice if necessary.

3. Don’t use section 20 to cover ‘gaps’

   Cases that have attracted the sternest judicial criticism have often involved councils using section 20 arrangements to cover “drift and delay” before issuing care proceedings. In 2015, Munby called a council’s use of voluntary accommodation for eight months after a child’s birth before seeking care orders “a misuse, indeed, in my judgement an abuse, of the provision”.

   If there is a pre-birth plan  to issue care proceedings, this should be done without delay. Using section 20 while issues with foreign courts are resolved or until the authority considers care proceedings can be brought is also not acceptable, the courts have said.

4. Understand when long-term section 20 arrangements are appropriate
   

   Don’t forget that many children are voluntarily accommodated because their parents do not wish to be the main care-giver. For example, some disabled children or unaccompanied asylum-seeking children may remain in section 20 arrangements for long periods with no question of care proceedings being issued.

By Belinda Schwehr

These questions have been raised with Belinda during her training sessions and webinars.

When Cheshire West applies

Are there any circumstances where the test in Cheshire West wouldn’t be seen to apply so as to trigger an application to the Court of Protection or through the Deprivation of Liberty Safeguards?

Even if a person is objectively confined, their circumstances will not fall within the scope of Article 5 of the European Convention on Human Rights if they have validly consented to the confinement. A person can only give valid consent to being subject to circumstances amounting to a deprivation of their liberty if they have the mental capacity to do so and are not under compulsion. The information relevant to that question goes beyond simply the information relating to the placement, to include information about the care and treatment and, broadly, the nature of the restrictions that will amount to an objective deprivation of their liberty.

As Mr Justice Charles said in the case of PJ v A Local Health Board and Others [2015]: “The fact that a person is objecting does not mean that they have capacity to consent to their care regime or a part of it. Also an objection does not of itself indicate whether a person with capacity is or is not consenting to the care regime. So PJ’s graphic description of the effect of the conditions of a CTO and their breach together [ “in my language, it means if you **** up it’s goodbye everything.”] with his objections to aspects of it do not indicate whether or not he has consented to it (or his capacity to do so).”  

Most obviously, the information will include the circumstances establishing that the person is under continuous supervision and control and not free to leave.

The acid test

What does this actually mean? Is it really ‘continuous supervision and control’ AND ‘not free to leave’ or is it ‘continuous supervision and control’ OR ‘not free to leave’ ?

In Cheshire West, the Supreme Court said that objective confinement involved both elements of the above test. There’s been a case in which a tribunal saw no need to ask itself whether a person under a community treatment order was free to leave because he was not under continuous supervision and control (in its view) as if both were always required, and this drew judicial criticism.

Perhaps unfortunately, the Law Commission identified either ‘continuous supervision and control’ and ‘not free to leave’ as indicators of one’s being subject to “restrictive care and treatment”, for the purposes of its original proposed new scheme. This proposal, which was dropped in the commission’s revised plans published in May 2016, was designed to go wider than mere deprivation of liberty, because of concerns about people having their Article 8 rights (to private and family life) restricted, not just their Article 5 rights.

Also, the notion of getting ‘out and about’ a reasonable amount within a care package, during daytime hours, was previously thought to reduce the state of ‘deprivation’ into something that was mere restriction, so there is widespread confusion at the front line. Since this is hard enough for the professional sector to understand, what hope a person with less than full capacity can have is beyond me! But it’s necessary to focus on this because staff need to understand what they need to convey to people being asked for their consent, and thus obviate the need for legal proceedings.

I think that ‘the acid test’ is fundamentally about being free to leave permanently, either because you want to, or because a real live someone else in your life (not just anyone in theory, and not every single person in your life) would be facilitated to take you if you appeared at least willing to go. A good practical test of this, to my mind, is to ask ‘would a provider expect to be savaged by the purchaser, if they let the person go, in those circumstances?’.

If, despite being under continuous supervision and control, you can still leave for good, you are not therefore deprived of your liberty. This was so in the case of ‘Ben’ in Bournemouth v PS and DS [2015] case, and is true for people in voluntary wards who can (if they have capacity) ask to leave whenever they want. But if a person would then in practice be sectioned, it is a legal nonsense and a lie to suggest that they are free to leave.

In almost all cases, if you are not free to leave, in the above sense, you will be deprived of your liberty. I can personally see no circumstances when you would not be deprived of your liberty if you were not free to leave, in the above sense.

But Baroness Hale in Cheshire West said it was possible; and Mr Justice Bodey said it was possible in W City Council v Mrs L, which concerned a lady in benign home care arrangements in her own home (Mrs L); and in a situation such as R (Ferreira) v HM Senior Coroner for Inner South London, where a person was found not to have been deprived of her liberty when receiving treatment in an intensive care unit, her removal would not have been realistically contemplated.

So not being free to leave is a necessity but not necessarily a sufficient condition for objective confinement. I think that the reference to an additional element was compelled because even in the absence of any other apparent lock or mechanism or constraint, one might be under such continuous supervision and control that one is ‘effectively’ not free to leave.

But one could be under that sort of supervision and yet be free to leave. I can see plenty of situations where you could be free to leave, and not deprived, even though you are under continuous supervision and control: very chaotic or disinhibited or aggressive people in care homes whose willing relatives would be free to remove them, for instance.

I can also see that you could be under seemingly less than continuous supervision and control but still not free to leave, and you would be deprived of your liberty. The case law and the Law Society’s deprivation of liberty guidance suggests that regulated unescorted free time, where the person’s whereabouts and activities are still known about, still constitutes continuous supervision and control.

So the acid test does involve both elements, but in a nuanced sense, for which legal literacy is required. Not being free to leave permanently is a necessity and in all but exceptional cases, a sufficient condition of being deprived, but being under continuous supervision and control is not a sufficient condition on its own. It is a necessity as well, if the question whether one is free to leave is not really clear.

Short-term deprivations of liberty

Why aren’t we using section 4B of the Mental Capacity Act 2005 (which allows for deprivation of liberty for life-sustaining treatment or the doing of “vital acts”) more often?

This amendment to the MCA permitted deprivation of liberty for what is implicitly a short time but it is often overlooked by those whose worries about longer term consequences stop them from doing proper safeguarding. The section allows temporary lawful justification for deprivation of liberty of a person P, in any setting, if and only if some factual conditions exist and have been processed in the minds of those responsible.

It is the solution to the status of people in intensive care units, for instance, because it does not say how long one has before one must take steps to get the matter to the Court of Protection. Whether that is in fact good enough for ECHR law is beyond the scope of this discussion but the real value of section 4B is that it provides lawful authority for the doing of a vital act, and that is not limited to the medical well-being of the incapacitated person.

In a decided case, A County Council v MB [2010] EWHC 2085, the court said that supervisory bodies and managing authorities should take steps (i) to bring the statutory provisions relating to applications to the court to the notice of their decision-makers, and (ii) to ensure that they are aware that pending a court decision they can either:

1. rely on section 4B of the MCA, and that to do so they should expressly address the test set out therein and record their reasoning as to why they believe it is satisfied, or (the emphasis on it being an ‘or’, not an ‘and’ is mine, here)
2. seek an interim order from the court to authorise a continuation of an existing detention.

An application to the court can be made and dealt with as a matter of urgency and supervisory bodies and managing authorities should take steps to ensure that their decision-makers know, or have easy access to the current methods to contact (i) the Court of Protection and the deprivation of liberty team at the court and (ii) the Family Division of the High Court to make an urgent application to the applications judge during court hours and the duty judge out of court hours.

Implications for practice

What are the implications for care management and safeguarding of recent developments in areas including deprivation of liberty of young people or people in their own homes?

In AJ  [2015] EWCOP 5, Mr Justice Baker said that council staff’s essential obligations are as follows (with my additional comments in italics):

1. To recognise when apparently beneficent steps will lead to a deprivation of liberty. That means understanding Cheshire West and how to apply it.
2. To be honest about what exactly those steps will be. That means putting the measures agreed to be necessary down in the care plan, and commissioning them explicitly, which is why outcomes-based specifications or contracts, without reference to inputs as well, can easily undermine the clients’ rights.
3. To recognise the continuing and positive obligation imposed upon local authorities to ensure that those subject to standard DoLS authorisations are afforded an effective right to challenge their detention before the Court of Protection. That means making the applications to the courts that are required by legal principle.

This is the second in a series of three linked articles on the law relating to deprivation of liberty. The first article covered deprivations of liberty outside the DoLS framework.

Belinda Schwehr, Care and Health Law 
Tel: 01252 725890
Email: belinda@careandhealthlaw.com
Website: www.SchwehrOnCARE.co.uk 

People using social care have been given increasing rights to access independent advocacy in recent years, making it ever more important for professionals to understand these rights and ensure people receive their entitlements.

But it is a complex picture, with different pieces of legislation containing different advocacy rights, and tension over the respective roles of advocate and social care professional in supporting children and adults within the care system.

To help practitioners better understand this area, leading advocacy trainer Kate Mercer has produced guidance on advocacy rights and working with independent advocates, which is now available on Community Care Inform.

Top tips

Users of Inform Adults and Inform Children can access the guidance now, but for a taster, here are Mercer’s top tips for working with advocates:

1. Know when there is legal duty to instruct or offer access an advocate. There are legal duties on local and health authorities to provide and promote access to advocacy, that you must make yourself familiar with. Remember the right to access statutory advocacy is not just best practice, but places legally binding duties onto professionals to refer.
2. Explain advocacy to people who could benefit. You are an essential part of making advocacy accessible and are often working with people who could really benefit from advocacy support. By explaining advocacy and the role of an advocate you can ensure people don’t miss out on advocacy.
3. Refer…early. Advocates need time to build up rapport with a person, establish their role and work out how best to work with a person to meaningfully support them through decision making processes. By referring early you are more likely to get better advocacy and therefore better decision making.
4. Don’t take it personally! Good advocates are trained not to make challenges personal, however part of their role is to support people to raise concerns and make challenges – regardless of whether the concern or challenge is legitimate, fair or valid. The primary goal of the advocate is to help a person express their views no matter what these views are. When advocacy works well it is often because the health or social care professional can listen to these concerns and respond positively.
5. Don’t invite the advocate to offer an opinion or make decision. It is natural for health and social care professionals who are used to working within multi-disciplinary teams to seek consensus from people involved in a person’s life when it comes to making decisions. However advocates do not make decisions:  advocates are there to make sure the person at the centre of the decision participates in the decision. To avoid confusion it’s simply best not to ask the advocate to contribute to decision making.
6. When sharing information, treat the advocate as if they were the person. An important principle underpinning advocacy is that of a rebalance of power – the advocate has equal power with the person they are supporting and cannot make decisions about their life or advise them what to do. This means that advocates should not hold information about the person that they do not know themselves. So assume if you share any information with the advocate, they are going to share it with their advocacy partner. The only instance an advocate would withhold information from their partner would be in extreme cases of risk.

Almost 140,000 women and girls in the UK are estimated to have undergone female genital mutilation and social workers are now under a mandatory duty to report cases of FGM involving girls aged under 18 to the police. The following tips are aimed at helping you to identify when FGM has occurred and how best to work with affected families and communities.

1. Social workers must notify the police when, in the course of their work, they discover that FGM appears to have been carried out on a girl who is under 18. Failing to comply with the duty will be dealt with via existing disciplinary measures. The mandatory duty only applies when FGM has been verbally disclosed by a child under 18 or visually confirmed by a professional. The duty is personal, i.e. the professional who receives the disclosure or identifies FGM must make the report.
2. Unlike other types of child abuse, there are no physical signs that can be observed on a child to alert a professional to the potential risk of FGM. Signs that a girl could be at risk of FGM include that one or both of her parents come from a community affected by FGM, her mother has already undergone FGM, one or both parents or elder family members consider FGM integral to their cultural or religious identity, and the girl/her family have limited level of integration with the wider community.
3. The risk of FGM occurring changes during a girl’s/woman’s life. For example, it is possible that new risks are introduced when she reaches puberty or at the time of marriage.
4. When first visiting a family to assess risk, it is good practice to ensure an accredited female interpreter who is not known to the individual and does not have influence in the individual’s community is present at the meeting. Also observe family members for signs of coercion and control, and, unless there is an immediate risk of FGM to a child, it is preferable not to conduct joint investigations with the police as this can be perceived as threatening.
5. Local authorities should have an understanding of which FGM-affected communities live in their area and of their attitudes and awareness of FGM. One approach to achieve this is participatory ethnographic evaluation and research (PEER), developed by Options Consultancy in collaboration with Swansea University, in which members of a community (PEER researchers) are trained to carry out in-depth conversational interviews with friends in their social networks. This can generate insights into sensitive issues among hard to reach groups, where stigma and marginalisation makes traditional research methods difficult.

Imagine you receive a phone call from a school, letting you know that one of the children you work with is off sick. Intuitively, you feel that something else is wrong and decide to make a home visit, to see the child and parents and ‘check out’ your feeling.

If the child’s parents or your manager challenged you about why you made an unscheduled visit, how comfortable would you be saying it was a ‘gut instinct’, regardless of what happened during the visit? Would you feel more confident if you could rationalise it afterwards by referring to statistics that link children missing school and child protection concerns?

David Wilkins, senior lecturer at the Tilda Goldberg Centre, University of Bedfordshire and former principal social worker at Enfield has developed Community Care Inform’s new lunchtime CPD session on analysis and decision-making.

He says understanding how intuition affects your process and being confident about this is a key part of developing your skills in this area. Here he explains the importance of instinct, plus more top tips included in the session:

Intuition vs logic

“Emotions will come into decision-making whether social workers want them to or not,” Wilkins points out. The best practitioners are able to comfortably use – and recognise when they are using – both intuition and logical reasoning. Supervision is a good forum to reflect on how decisions were made and what happened as a result.

Take time to hypothesize

When you encounter a practice dilemma, take time to generate as many hypotheses as possible about what is happening. Don’t worry about coming up with the ‘right’ hypothesis or thinking of solutions at this stage; the aim is to improve analysis by expanding thinking around a problem.

For example, if you are working with a family but only ever speak to the mother and are struggling to engage the father, some hypotheses could be:

• The father is actively trying to avoid meeting with you
• He wants to meet you but hasn’t been given the opportunity
• He has met with social workers in the past and had a negative experience – not being listened to, for example
• The family have interpreted something you said to mean you don’t want or need to meet him
• You are more comfortable working with mothers than fathers

You could think of more for this example. Once hypotheses have been generated, you can start to think of what information you need to test them out and what you could do to counter the problem.

Understand confirmation bias

It’s human nature to seek out or place more trust in information that confirms our preferred view. Someone who believes that men are better drivers than women, for example, will tend to remember many examples of seeing female drivers having difficulty parking and forget all the times they have seen male drivers in the same situation. In social work we may also actively seek information to confirm our belief. If you believe a child is being maltreated, you will ask different questions during an assessment than if you believe the child is well cared for.

Simply being aware of confirmation bias is not enough to mitigate against it. You could use supervision to explore how you would approach a case if you started from the position of a completely different viewpoint about the service user and see if this informs your thinking and decision-making.

Find out what happened next

Without getting feedback on this, you may never know whether the decisions you make prove to be helpful or not or whether bias is coming in at a system-wide level.For example, if an assessment is closed with no further action, would you find out if the family is subsequently referred for similar reasons (which may indicate that closure was not the right decision)? Explore whether you obtain a personal re-referral rate and reflect on whether this can inform future assessments and decision-making.

For further details, more aspects of analysis and practice examples to work through, see Community Care Inform’s new lunchtime CPD session and practice guide.