Concerns over the use of consent to remove a baby into local authority care

Fears of a reported pandemic crisis of child abuse, neglect and poverty (Pidd and Quach, 2021) have led to renewed concerns over the use of the voluntary placement of babies and children into the care of the local authority under the Children Act 1989, section 20 (and its Wales equivalent under the Social Services and Wellbeing (Wales) Act 2014, section 76).

Provision of accommodation by the local authority

The Children Act 1989, section 20 concerns the duty of a local authority to provide accommodation for children in need. It contains no compulsory provisions and no compulsory curtailment of parental responsibility. Its use is based on partnership and agreement. It cannot therefore be used as a form of disguised compulsion. A person with parental responsibility must agree to the placement for removal under this provision to be lawful.

Judicial concerns over the use of voluntary accommodation

Although the use of section 20 accommodation can work well and to the benefit of child and parent, the courts have expressed concerns over it use, especially when the child's placement extends to weeks or months while the local authority undertakes its investigations, without the judicial scrutiny that arises when a safeguarding application is made under the Children Act 1989.

In Re N (Children) (Adoption: Jurisdiction) [2015], Sir James Munby held that the procedure under section 20 of the Children Act 1989 is misused by local authorities where it goes beyond being a temporary short-term measure to a placement lasting months as a prelude to care proceedings. The court held that the procedure is misused where:

• The local authority fails to obtain consent from the parents for its use
• Consent is not obtained in writing: there is no requirement for written consent
• The arrangements under section 20 continue for too long
• Local authorities are reluctant to return the child to their parents immediately on withdrawal of consent.

The UK Supreme Court added to these concerns in Williams & Another v London Borough of Hackney [2018], highlighting a number of problems with the use of section 20, including:

• Retention of a child in local authority accommodation after one or both parents have indicated or even formally asked for his return
• A lack of action where the perception is that the parents do not object to the accommodation, even though this means that no constructive planning for the child's future takes place
• Separation of a baby from the mother, at or shortly after birth without police protection or a court order, where she has not delegated the exercise of her parental responsibility to the local authority or in circumstances where it was questionable whether the delegation was voluntary.

Removal from hospital shortly after birth

Concerns over seeking consent from a mother to remove her baby from hospital into voluntary local authority accommodation were raised in Re CA (A baby) [2012] where a woman, who had initially refused permission for social workers to remove her newborn baby into their care under the Children Act, section 20, was persuaded to change her mind and give consent when still under the influence of the morphine given to her following life-saving surgery after a difficult labour.

The court acknowledged that before the woman consented to pain relief, nurses were very concerned, given the mother's condition, about her capacity to consent and voiced these concerns to the social worker undertaking the mental capacity assessment. The court, however, found that both the nurses and the social worker failed to take account of the impact of the morphine, together with the impact of childbirth, when undertaking a later assessment other than the pain relief made her calmer and she appeared better able to make a decision.

The local authority in this case later accepted they had breached the mother and baby's right to respect for a private and family life under the Human Rights Act 1998, schedule 1, part 1, article 8. They accepted that they should not have sought consent from the mother to remove the child at that time and that such a removal was not a proportionate response to the risk that then existed (Re CA (A baby) [2012] at para 23-24).

The nurse's role in promoting the best interests of their patients

Nurses have a professional duty to act as an advocate for vulnerable patients by challenging poor practice and discriminatory attitudes (Nursing and Midwifery Council, 2018: standard 3). Nurses must also act in the best interests of patients at all times and this includes keeping to all relevant laws about mental capacity (Nursing and Midwifery Council, 2018: standard 4).

In discharging those professional obligations under The Code, nurses must ensure that where consent to an agreement to accommodate a baby is to be made soon after birth, nurses must ensure the guidance issued by the court is followed:

• Every parent has the right, if capable, to exercise their parental responsibility to consent to have their child accommodated by the local authority
• Every local authority has the power to accommodate the child, provided that it is consistent with the welfare of the child
• 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
• When seeking consent, the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and, in particular, the mother's capacity to use and weigh all the relevant information.
• If the social worker has doubts about capacity, no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management
• If the social worker is satisfied that the person whose consent is sought does not lack capacity, they must also be satisfied that the consent is fully informed:
• Does the parent fully understand the consequences of giving consent?
• Does the parent fully appreciate the range of choices available and the consequences of refusal as well as giving consent?
• Is the parent in possession of all the facts and issues material to the giving of consent?
• If not, no further attempt should be made to obtain consent on that occasion and advice should be sought and the social work team should further consider taking legal advice if necessary
• If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of consent and the subsequent removal is both fair and proportionate:
• What is the current physical and psychological state of the parent?
• If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
• Is it necessary for the safety of the child for her to be removed at this time?
• Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
• If the social worker then considers that a fully informed consent has been received from a mother with capacity in circumstances where removal is necessary and proportionate, consent may be acted upon
• Local authorities should approach with great care the obtaining of section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made. (Re CA (A baby) [2012] (para 46)).

Where a nurse is not satisfied that a social worker is fully applying this guidance in the discharge of their duty to the mother and baby, the social worker must be challenged, and further advice sought on how to proceed.

Conclusion

The use of voluntary accommodation procedures under the Children Act 1989, section 20 (Social Services and Wellbeing (Wales) Act 2014, section 76 in Wales) must be with the consent of a person with parental responsibility. Concerns over its prolonged use by local authorities, the absence of judicial supervision, a statutory guardian and the removal of a baby shortly after birth have been raised by the courts.

Nurses must act as their patient's advocate and ensure that the use of section 20 voluntary accommodations procedure only happens where a parent gives a real consent and has the mental capacity to give that consent.

KEY POINTS

• Fears of a crisis of child abuse, neglect and poverty have led to renewed concerns over the use of procedures under the Children Act 1989, section 20
• The courts have also raised concerns about local authorities misusing procedures under the Children Act 1989, section 20
• Nurses must act as their patient's advocate and ensure that the use of section 20 procedures in hospital meet the guidance of the court in Re CA (A baby) [2012]