(ii) The 'languishing' child
Concerns that care proceedings led to delay and uncertainty for children’s futures were addressed by the introduction of 26-week proceedings targets, implemented through the Children and Families Act 2014. The unintended consequence for many children has been extensive periods under s 20 before the local authority issue proceedings in order to avoid falling foul of the 26-week time scale. Some extreme recent cases where children have been permitted to drift on s 20, include:
Call a spade a spade: 'family arrangements' or section 20?
- In P (A child: Use of s 20, CA 1989)  EWFC 775, the child had been accommodated under s 20 for nearly two years at the point that care proceedings were finally issued, despite concerns by the LA about the paternal grandfather, with whom the child was accommodated. HHJ Atkinson stated that the fact the child had 'languished in s 20 accommodation with no clear plan [meant] it is likely that he will have suffered confusion and some harm as a result'.
- In SR (A child: Habitual Residence)  EWHC 742 (Fam), particular disapproval was passed on the use of s 20 for lengthy periods where there is obvious potential for jurisdiction to be an issue.
- In Northamptonshire CC (above) the extensive delay in bringing proceedings, whilst the child was on s 20, led to the guardian and mother issuing a claim for Human Rights damages on behalf of the child. The local authority agreed to pay £17,000 of damages. Keehan J found that the accommodation of the child by the local authority 'under a s 20 agreement deprived him of the benefit of having an independent children’s guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.'
Failure to use s 20 of the 1989 Act at all is perhaps the most worrying trait. Abuse of s 20 will at least come to the court’s attention eventually. Having what in effect constitutes a s 20 agreement (with corresponding local authority involvement and 'ultimatums') and then labeling it 'private fostering' or a 'family arrangement' may never face the scrutiny of the courts, nor permit the opportunity for those involved to obtain legal advice.
The goal, of course, is to avoid the child being classified as 'looked after' within the meaning of s 22(1) of the 1989 Act and the financial obligations (including full fostering allowance) that this definition entails. The distinction between a 'looked after child' and 'private fostering arrangements' was outlined in two cases: R (SA) v Kent CC  EWCA Civ 1303,  1 FLR 628
and Southwark London Borough Council v D  EWCA Civ 182
,  1 FLR 2181
. The relevant factors include:
a.whether the local authority took a central role in making arrangements for the child to live with someone in their home;
b.whether the local authority had made clear they were proposing solely a 'family arrangement' with limited financial support;
c.if the proposed financial arrangements were left unclear, there was a danger that the foster parent and court would conclude that the local authority had been acting under its statutory powers and duties.
In that case, the local authority was held to have taken a 'central role' by virtue of:
a.Drawing up an agreement, on local authority headed paper, for the child to be cared for by the grandmother;
b.Strictly regulating contact between the child and parents;
c.Initiating the first discussions with the grandmother regarding long-term care of the child and giving an 'ultimatum' on foster care or kinship care.
The Court of Appeal held that the local authority had acted in accordance with their s 20 obligations, even if the agreement was not officially labelled as such. Therefore, the child was deemed 'looked after' and the full fostering allowance was to be awarded to the prospective special guardian (grandmother).
Ultimately, s 20 can be a useful tool to reach agreement and stability for a child’s care but local authorities should exercise great care in its use. It should be used as an interim measure, for welcomed ‘respite care’ or family placements. Even in such circumstances, the parents should be given access to legal advice to ensure they understand the range of options available. Where the local authority claim to merely assist a 'family arrangement', and not to invoke their powers and obligations under the Children Act 1989, this must be unequivocal and the financial consequences clearly set out.