The Problem with Section 20

Social work malpractice in the use of section 20 of the Children Act 1989 has brought the profession into disrepute. It shows that the profession has a flawed understanding of the legal basis of child protection work.

Two Cases from the Family Courts

A social worker and her two managers were named by a judge for their actions when eight police officers and two social workers were needed to remove children under a section 20 arrangement. The judge criticised them for illegally taking children into care, breaching a family's human rights, altering the report of another social worker, lying under oath and knowingly withholding evidence from the court. The judge also expressed dismay at the delay in concluding care proceedings, caused almost exclusively by the actions of employees of the council here.

The judge referred the social workers to their disciplinary body, the Health and Care Professions Council (HCPC) but the HCPC has now cleared them of any wrongdoing. Apparently, it accepted the submission from Hampshire Council that they 'were never in any doubt whatsoever that the social workers concerned have acted honestly, appropriately and professionally at all times' and that they supported them, 'even in the face of ill-informed press comment'. This flat denial of serious problems arising from the misuse of section 20 shows that something is very wrong in the system.

In another case recently reported from the Court of Appeal, Hackney social workers used a section 20 arrangement in a way that was dishonest and deliberately misleading here. They had sufficient concerns about neglect and physical abuse to go to court and obtain an emergency care order. However, they instead used a 'voluntary' arrangement but with a level of coercion that effectively rendered the parents powerless. This case is now being considered by the Supreme Court.

There have been a number of recent court cases in England where social workers have been criticised for unlawful use of section 20. This has produced 'drift' in care plans for children and lengthy legal disputes. There is no reason to think that malpractice in the use of section 20 will cease.

The Original Purpose and Intention Behind Section 20

The Children Act 1989 Act was an enlightened and progressive piece of legislation and pointed the way towards a more balanced approach in child protection work. It gave courts greater powers in determining the details of case management, so that any proposed change in the child's plan required a 'directions' hearing. It also introduced the new principles of 'parental responsibility' and 'partnership with parents' which gave social workers a new framework for practice. Earlier practices had to be reviewed to take account of this new legal requirement for partnership working and, despite some uncertainty about this initially, there was a strong belief that social work practice was moving in the right direction.

The 1989 Act treated section 17 (children in need) and section 47 (investigation) as separate and distinct activities. The s17 duty was met by providing an open-door, community-based service for families seeking help; the s47 duty was met by the provision of more formal arrangements to ensure that any child protection concerns were dealt with immediately and lawfully. The duty under s20 to provide accommodation for children in need on a voluntary basis was regarded as a supportive, short-term arrangement. It was generally used for children with disabilities and for parents in crisis, sometimes due to health problems or hospital admission, and families under stress, due to out-of-control children or relationship breakdown, where the parents had requested care.

During the mid 1990's a coalition of academic and professional groups was demanding a greater emphasis on family support and preventative work. The re-focusing debate that took place argued for the balance to be shifted away from child protection investigations and towards the provision of support services. As a consequence, important social work tools of registration, child protection plans and core group working were given a negative connotation and replaced with a 'voluntary' approach based on multi-agency interventions to safeguard children - on the assumption this would avoid the stigma of 'child protection'.

How Section 20 is Presently Being Used

The situation today is that policies and practices recognise the value of combining the two social work functions of family support and child protection and focusing on needs rather than risk. While a soft and personalised approach may be the only way in which social workers can gain trust with their clients, it has produced a professional orthodoxy of re-defining 'risk' as 'need' resulting in the loss of much practice wisdom in child protection work. In particular, it has created much uncertainty about what social workers are required to do when an 'in need' case appears to cross the threshold into 'at likely risk of significant harm'.

Social workers have onerous responsibilities in their work with children but they are not helped by an organisational culture in which statutory duties seem to conflict with professional duties. They are employed to carry out statutory child protection work but are trained to act as professionals who can work with children and families on a voluntary basis. Their professional loyalty to supportive and strengths-based approaches may blind them to the reality that some parents may require a different approach. While they have a statutory duty to intervene if a child is deemed to be at risk of serious harm, their training often fails to prepare them adequately for this role.

Social workers in the two cases above apparently assumed that the 'voluntary' section 20 arrangement was the correct one - but they were wrong. In Hampshire consent was obtained oppressively; in Hackney parental consent was never obtained. In these cases it is unclear why social workers did not carry out a section 47 investigation, hold a child protection conference, provide child protection plans and, if the children were deemed at ongoing and likely risk of significant harm, make the decision to commence legal proceedings. While the use of these formal child protection measures may be experienced by parents as intimidating, if used by social workers appropriately they will actually give more effective protection to parents of their legal rights than informal arrangements, which are invariably more imprecise.

Many aggrieved parents have found it difficult, if not impossible, to get justice following the misuse of a s20 arrangement. Judges too have struggled to find a way through the legal muddle. In some cases the actions have been unlawful because social workers failed to systematically gather evidence that the threshold criteria had been met before the subsequent commencement of legal proceedings. Consequently, they struggled to produce the evidence in court and may have been tempted to distort the truth to support their own objectives.

What is at issue here is possibly one of the the most intractable contradictions within social work - and which makes child protection work such a fraught activity for lawyers - the appropriate use of authority. Increasingly, campaigning organisations are putting pressure on services to rescue abused and neglected children - but this is in direct conflict with those working to protect the human rights of parents. In other words, the court may sometimes be the only place where the inherent contradictions about the appropriate use of authority/statutory powers can get resolved. Unfortunately, by the time matters get to court the opportunity for a more constructive resolution of the issues may have been lost.

What Needs to Change

One aspect of professional practice that must be addressed is the misuse of the term 'disguised compliance' with its focus on the manipulative qualities of parents who deceive the unguarded social worker. Social workers themselves can avoid getting into this situation by being more honest about what they are trying to do and clear about what they expect of parents.

However, a more fundamental problem arises from the prevailing ideology within the social work profession. There seems to be an incorrect assumption that the 'no order' principle is an important guide to practice. In fact the 'no order' principle, section 1 (5) Children Act 1989, does not create a presumption one way or the other. It is merely a principle for the court to consider after the threshold criteria have been met and the welfare of the child is under consideration. However, the mantra of the 'no order principle' is being used for reasons of expediency to justify the use of s20. It saves social workers the trouble of making a careful analysis of all the evidence and using their professional judgement when considering how to reach a balanced decision regarding the need for care proceedings or less coercive measures to protect the child.

In a document produced by CAFCASS and ADCS Practice Guidance for the Use of Section 20 Provision in the Children Act 1989 the guidance cautions against local authorities becoming reluctant to use s20 (or s76 of the 2014 Act in Wales) where it is appropriate and positive. It states that recent judgements may lead local authorities to misinterpret the law and it uses the argument that reluctance to use s20 presents a 'significant challenge to the no order principle at the heart of the 1989 Children Act.' Unfortunately, this argument is itself a misreading of the law, as explained above.

An agreed definition of the function of children's services is increasingly difficult to find because it seems impossible to knit together all the contradictory forces bearing down on the service. In this climate it is remarkable that some authorities still maintain a coherent model of practice which enables them to function reasonably well. However, in the more dysfunctional authorities a new structure is required which recognises that child protection is a core function and supports social workers in developing their knowledge and skills in working with children at greatest risk. Work with children 'in need' should only take place where there is informed consent from parents. This would ensure that section 20 accommodation is a voluntary service available to children 'in need' - in line with the original intention of the 1989 Act.

Hilary Searing