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3.1.1 Decision to Look After and Care Planning

SCOPE OF THIS CHAPTER

The chapter summarises the key steps that must be taken in deciding that a child should become a Looked After Child.

RELATED GUIDANCE

The Children Act 1989 Guidance and Regulations - Volume 2: Care Planning, Placement and Case Review (2015)

Section 20 Practice Guidance

RELEVANT CHAPTER

Foster to Adopt Placements Procedure

AMENDMENT

This chapter was amended in December 2017 to reflect the outcome of an Appeal Court hearing (2017) with respect to ‘consent’. The court recognised that the term ‘consent’ itself was not used in Section 20. However, it described previous court observations as ‘good practice guidance’, emphasising its judgment should not alter the content or effect of these. (See Section 1.3.1, Obtaining Parental Consent.)


Contents

  1. Decision to Look After a Child
  2. The Care Plan
  3. Other Plans and Arrangements


1. Decision to Look After a Child

In Lincolnshire there are a range of integrated services to support children within their own families including interventions under the Common Assessment Framework. Sometimes these strategies require additional support and a referral is made to Children's Services and a Social Care Assessment.

Timely assessments will incorporate consideration of providing supports to the family and or extended family to bolster their abilities to continue safely caring for the child.

Research clearly indicates that the outcomes for those children who become Looked After are significantly poorer than those who remain in their family of origin. It is therefore important that all attempts to exhaust the Local Authority duties, under Section 17 Children Act 1989, to promote & safeguard the welfare of children within their family are made.

Whenever there is a serious risk of a family breakdown including a request for a child to come into public care, a Social Care Assessment should be completed and it should consider:

  • Support available from within the extended family and social network;
  • Family arrangements for alternative Carers within their network;
  • Planned support available from other agencies;
  • Consideration of referral to other support agencies;
  • Support available from within Children's Services.

If placements are required, all efforts will be made to ensure joint agency planning with partner agencies to assist in efforts to help the child to remain within their own family network.

Who makes the decision to for a child to come into public care?

The Child's social worker must complete a Social Care Assessment of the child's needs and if their analysis identifies that the child must come into public care, their Team Manager must approve the placement. In an emergency within office hours, the authority for a placement remains the same.

Outside office hours, the Emergency Duty Team can make the decision to Look After a child. Any decision to place the child outside office hours must be supported by a Placement Plan which should be completed as fully as possible and communicated to the relevant team by the beginning of the next working day.

A decision to Look After a child may occur in the following circumstances:

  • All attempts or possibilities at intervention to maintain and support the child with his or her family have broken down; or
  • The child would be at risk of Significant Harm by remaining with the family.

The decision should only be made if appropriate consultation has taken place on the necessity, purpose and nature of the proposed placement.

Where the child is the subject of Care Proceedings, the Pre-proceedings checklist must be completed (see Public Law Outline (PLO) Applications to Court under Children Act 1989 and CAFCASS Plus Lincolnshire Initiative Procedure).

If a Social Care Assessment has not been completed or it is not up to date, a Social Care Assessment must be completed.

The Social Care Assessment will:

  • Record the views of the child/young person in respect of the assessment, the plan to accommodate, and the proposals for contact. It should evidence that the child has been seen alone and if not the reason for this;
  • Record the views of the parent/carer in respect of the Assessment, the plan to accommodate, and the proposals for contact;
  • Identify, evidence any risks and within the analysis take into account the risks and identify the needs of the child, including those to evidence the need to accommodate;
  • It will incorporate and evidence the risks to the child and that concerns are substantiated and that the child is judged to be at continuing risk of significant harm. This will be evidenced within the analysis;
  • Evidence the type of placement and carer the child requires to assist with 'matching needs'. The conclusion will be evidenced within the analysis;
  • Evidence any risks that may be posed by the child in a placement and what measures may be required to minimise/manage those risks. The conclusion will be evidenced within the analysis;
  • Evidence contact requirements. The conclusion will be evidenced within the analysis;
  • Evidence the reason why the child/young person is unable to live with friends/extended family. The conclusion will be evidenced within the analysis;
  • Evidence why a Family Group Conference has not been held or if held, unsuccessful in identifying an alternative placement. The conclusion will be evidenced within the analysis;
  • Evidence when the kinship care assessment will commence and end when other carers have been identified. The conclusion will be evidenced within the analysis;
  • Evidence within the analysis the reason for the decision of the chosen method for providing the accommodation i.e. whether to progress the proposed objective of the Care Plan under section 20 or via the Public Law Outline legal planning meeting.

In all circumstances the Head of Service will be contacted by the Team Manager (this cannot be delegated to the Practice Supervisor) to discuss the outcome of the assessment and the proposed request for a placement. Wherever possible the Social Care Assessment (Emergency immediate safeguarding circumstances only) will be read by the Head of Service.

The Team Manager will verify to the Head of Service:

  • The Team Manager is satisfied that the quality of the Social Care Assessment;
  • That all other options for the child / young person to remain with birth family, significant others, Connected Person or friends have been fully explored;
  • That a Family Group Conference has been held, and if not provide the reason for this;
  • That the Genogram is complete and up to date and the Team Manager has seen it;
  • All resources have been explored and mobilised to support the child/young person to live with the birth family;
  • The proposed objective of the care plan and timescales;
  • That the child's current plan is up to date, the date it was last reviewed and the chairperson of the review, the date of the next review, which will incorporate the plans associated with the proposed objective for the care plan;
  • If the Care Plan is under Section 20 Children Act 1989, the reason for this instead of attendance at the Public Law Outline legal planning meeting.

Authorisation from the Head of Service must be sought to agree that a request can be made for a placement. The Head of Service must also agree if the child requires immediate safeguarding and placement prior to the legal planning meeting.

If approval is given, the Social Worker should notify the Placement Duty Desk regarding the needs of the child to assist in identifying a suitable placement.

In the event of an 'in house' placement not being available, the Head of Service Regulated Services should be contacted before arrangements can be entered into to identify an Out of County Placement (This includes placements with Independent Fostering Agencies).

1.2 Family Group Conference

A Family Group Conference must be considered, to attempt to identify family or friends who could look after the child/young person or assist in any other aspects of the plan including contact. The outcome or reason for not using the facility will be recorded within the Social Care Assessment or Care Plan. If the decision changes at any time it will be recorded within case notes'-case discussion/decision'.

A Family Group Conference will be offered to the family when the assessment concludes that the child cannot live with the current carer/parent.

The birth family will be offered the opportunity to hold a family meeting with the purpose of:

  • Identifying who could look after the child to prevent the child from being placed in a local authority placement;
  • Identify who wishes to be assessed to look after the child if the child is unable to return to the birth parent(s) or those with Parental Responsibility;
  • Make proposals of how the family/friends can assist with the contact arrangements;
  • Make proposals of how the family/friends can assist with meeting the identified needs within the child's plan.

The family should be offered the facility of an independent chairperson. If this is their preference the Lead Social Worker will contact the Family Group Conference co-ordinator manager within one working day of being notified by the family.

1.3 Section 20 Accommodation

There are many scenarios in which section 20 is used positively and these include situations of family support (e.g. Short Term Breaks Procedure) and where parents are unable to care for children, for whatever reason, and there are no agreed alternative family or friends to undertake this.

In Accommodating a child under Section 20, it must always be borne in mind that the local authority does not have Parental Responsibility; only the parents/ those carers with Parental Responsibility can make decisions for the child.

In providing for the accommodation of a child the local authority must be satisfied that it is in the child's best interest to do so. The parent/carer can remove the child from Accommodation at any time and any such request must be responded to promptly by the local authority, or it must otherwise take action through the court.

The parents/carers should be advised of any changes in the child’s circumstances whilst the child is in local authority care.

It is therefore important to ensure that the parents/carers have full information about their continuing responsibilities as well as those of the local authority and that this is enshrined in the Care Plan and a written agreement.

1.3.1 Obtaining Parental Consent to Look After a Child

A recent Court of Appeal hearing (L B Hackney v Williams & Anor [2017] EWCA Civ 26) confirmed that ‘Consent’ under any of the Section 20 provisions was not a statutory requirement as such. It stated that the local authority has a duty to provide accommodation for children, (subject to a parent being able to legally object and / or remove) where the person who had been caring for them was ‘prevented (whether or not permanently and for whatever reason) from providing them with suitable accommodation or care’.

This, therefore, supports the local authority in its duties towards children on those occasions where ‘parental consent’ cannot, for a variety of reasons, be obtained at the time of a child’s accommodation or parents cannot effect care of the child themselves.

Nevertheless, with regard to previous court judgments on ‘consent’, it reflected that they were, ‘in short, good practice guidance and a description of the process that the family court expects to be followed’.

Therefore, obtaining Parental Consent as a matter of good practice remains an essential  part of Accommodating a child under this part of the 1989 Act. A number of court decisions have been particularly critical of local authorities’ actions with regard to consent and great care needs to be undertaken to ensure parents have the appropriate capacity to do this.

Section 20 agreements are not valid unless the parent giving consent has capacity to do so, (in cases where the father also has Parental Responsibility, the consent of both parents should be sought). A child cannot be accommodated if someone holding parental responsibility is willing and able to provide or arrange accommodation for the child. The consent needs to be  properly informed and fairly obtained. Willingness to consent cannot be inferred from silence, submission or acquiescence - it is a positive action.

Detailed guidance on the obtaining of parental consent was given by the High Court in the case of Re CA (A Baby) (2012):

  • The social worker must first be satisfied that the parent giving consent does not lack the mental Capacity to do so. Under the Mental Capacity Act 2005, a person is unable to make a decision if s/he is unable:
    • To understand the information relevant to the decision;
    • To retain that information;
    • To use or weigh that information as part of the process of making the decision; or
    • To communicate his/her decision.
  • If there is doubt about Capacity, no further attempts to obtain consent should be made at that time, and advice should be sought from a manager;
  • If satisfied that the parent has Capacity, the social worker must be satisfied that the consent is fully informed:
    • Does the parent fully understand the consequences of giving such a consent?
    • Does the parent fully appreciate the range of choice 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 satisfied that the consent if fully informed, no further attempt should be made to obtain consent on that occasion and advice should be sought from a manager and legal advice sought if thought necessary;
  • If satisfied that the consent is fully informed, then it is necessary to be satisfied that the giving of such consent and the subsequent removal of the child from the parent 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?
    • Where the first language of a parent is not English, there remains an obligation on the Social Worker to ensure that there will be a translator present at any discussions. This is to ensure that accurate information is relayed and that forms for written consent are translated into the parent's first language;
    • 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?

In the case of siblings, wherever it is in the best interests of each individual child, they should be placed together. Where they cannot be placed together, they must be supported to understand why they cannot live together, and there should be robust plans for contact between them, so far as this is consistent with their welfare.

Whether a person has capacity can sometimes be difficult to determine, as some individuals have a learning disability or mental health problem but can present as being more ‘able’ than in fact they are. Equally, within the context of ‘assessing capacity’, social workers should  approach with great care relying on section 20 agreements from mothers after giving  birth, (especially where there is no immediate danger to the child and where probably no order would be made).

Where there is any concern about a parent / carer’s capacity, the social worker should ensure they discuss this issue with their team manager, or that the parent has information from a legal adviser or professional advice (1). Note: In Coventry City Council v C, B, CA and CH (2012) EWHC2190 (Fam) it was identified that, ‘every social worker obtaining consent is under a personal duty (the outcome of which may not be dictated to by others) to be satisfied that the person giving consent does not lack the capacity to do so’.

(1) Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid.

1.3.2 Recording Parental Consent

In Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 good practice the President of the Family Division, Sir James Munby sets out his view in respect of good practice in the recording of parental consent to a Section 20 agreement:

  • Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent's signature;
  • The written document should be clear and precise as to it terms, drafted in simple and straight-forward language that the particular parent can readily understand;
  • The written document should spell out, following the language of section 20(8), that the parent can 'remove the child' from the LA accommodation 'at any time';
  • The written document should not seek to impose any fetters on the exercise of the parent's right under s.20(8). Where the parent is not fluent in English, the written document should be translated into the parent's own language and the parent should sign the foreign language text, adding, in the parent's language, words to the effect that 'I have read this document and I agree to its terms'.

The 'Consent or Child to be Accommodated under Section 20 of the Children Act Form' can be located on GEORGE, Children's Services Core Forms Ch-D.

1.3.3 Withdrawal of Consent to Accommodate

A person who has parental responsibility for a child can object to a child's continued accommodation at any time and there is no requirement on them to serve notice. If the local authority seeks to prevent the removal of a child from accommodation due to safeguarding concerns, the local authority must apply for an order from the court or request the police invoke their police protection powers.

1.3.4 The use of Section 20 prior to Court Proceedings

Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the Courts have strongly advised that this should not lead to an unnecessary delay in the issuing of proceedings and cases must not be allowed to drift, (including those cases when children are placed with relatives under a Section 20 agreement). Proceedings still need to be issued in a timely fashion.

Even where a parent/carer’s legal adviser has established an agreement regarding the use of Section 20 prior to either issuing Proceedings or progressing a timely plan and timetable of work for further assessment, these should be carefully adhered to by all parties. Any plan should be based on the child’s welfare needs and avoid delay.

All such agreements should be undertaken in conjunction with the local authority’s Legal Services and include a clear (written) agreement and Care Plan with the outcome considered at a Looked After Children’s Review to which the parents have been invited.

Where it is highly likely that proceedings will be required to determine a factual issue, or where complex medical evidence may  become involved it is better for proceedings to be issued promptly allowing the court to manage the timetable of the case and the parents to be able to access effective legal advice.


2. The Care Plan

Where a decision is made to look after a child, the child must have a Care Plan, the contents of which include:

The child's Social Worker is responsible for drawing up and updating the Care Plan in consultation with:

  1. The child;
  2. The child's Parents and those with Parental Responsibility;
  3. Anyone who is not a Parent but has been caring for or looking after the child;
  4. Other members of the child's family network who are significant to the child;
  5. The child's school or education authority;
  6. The relevant health trust;
  7. The Youth Offending Service, if the child is known to them;
  8. Any other agency involved with the child's care.

One of the key functions of the Care Plan is to ensure that each child has a Permanence Plan by the time of the second Looked After Review. The Care Plan is subject to scrutiny at each Looked After Review. See The Review of the Child's Plan for Looked After Children Procedure.

The Care Plan should include the arrangements made to meet the child’s needs in relation to his or her:

  • Emotional and behavioural development;
  • The child’s identity in relation to religious persuasion, racial origin and cultural and linguistic background;
  • Family and social relationships; arrangements for contact with sibling(s) accommodated by the authority or another local authority; details of any Section 8 Order, in relation to a Looked After Child; details of any order in relation to contact with a child in care; arrangements for contact with parents/anyone with Parental Responsibility/ any other Connected Person; arrangements for the appointment of an Independent Visitor for a Looked After Child;
  • Social presentation;
  • Self-care skills.

2.1 Timescales for Completion of the Care Plan

A Care Plan must be prepared prior to a child’s first placement, in accordance with the outcome of the Planning Meeting referred to in Section 1, Decision to Look After a Child.

If there are exceptional reasons that prevent the Care Plan from being drawn up prior to the child's placement, the key objectives of the child's proposed placement must still be identified and recorded. If satisfied, the Manager can then approve that the Care Plan is drawn up within a maximum of 5 working days of the placement.

2.2 Approval of the Care Plan

A child must not be removed from parents without:

Any Care Plan taken before the Court within Care Proceedings must be endorsed and signed by the Head of Service and endorsed at the Legal Planning Meeting if it is the first application and in the case of a final care plan when the child is not returning to their birth family, to the Permanence Panel.

All other Care Plans must be endorsed and signed by the Team Manager.

The Care Plan can be updated by the Social Worker, with the Manager's approval, at any time.

The Care Plan is subject to scrutiny at each Looked After Review.

2.3 Circulation of the Care Plan

The Care Plan must be circulated to the following people:

  • The child;
  • The Parent(s);
  • Providers/Carers - if no Care Plan has been drawn up prior to the child's placement, the Social Worker must ensure that the providers/Carers understand the key objectives of the plan, and how the placement will help achieve these objectives;
  • The child’s Independent Reviewing Officer (IRO).


3. Other Plans and Arrangements

This summarises the other plans that must be drafted.

A Placement Plan (recorded on the Placement Information Record) must be drawn up outlining the arrangements for Looking After the child before the child is placed or, if not reasonably practicable, within 5 working days of the start of the placement.

The information to be included in the Placement Plan will include:

  1. How on a day-to-day basis the child will be cared for and the child’s welfare will be safeguarded and promoted by the appropriate person;
  2. Any arrangements for contact between the child and parents/anyone with Parental Responsibility/any other connected person, including, if appropriate, reasons why contact is not reasonably practicable or not consistent with the child’s welfare; details of any Child Arrangements Order or Contact Order (under Section 8 or 34 of the Children Act 1989 respectively); the arrangements for notifying any changes in contact arrangements;
  3. Arrangements for the child’s health (physical, emotional and mental) and dental care, including the name and address of registered medical and dental practitioners; arrangements for giving/withholding consent to medical/dental examination/treatment;
  4. Arrangements for the child’s education and training, including the name and address of the child’s school/other educational institution/provider and designated teacher; the Local Authority maintaining any Education, Health and Care Plans;
  5. The arrangements for and frequency of visits by the child’s social worker; and for advice, support and assistance between visits;
  6. If an Independent Visitor is appointed, the arrangements for them to visit the child;
  7. The circumstances in which the placement may be terminated;
  8. The name and contact details of the Independent Reviewing Officer, the Independent Visitor if one is appointed, the social worker who will be visiting the child, and the Personal Adviser for an Eligible Young Person.

If the child is placed out of hours or on an unplanned basis, it may not be possible to fully complete the plan/record. In these circumstances, as much of this plan/record should be completed as possible. As a minimum, the following should be recorded:

  • Healthcare/medical needs, including Consent to urgent medical treatment;
  • Contact arrangements;
  • Arrangements for school, including transport;
  • Financial arrangements including the need to purchase any clothing or urgent equipment;
  • Support that may be required by the Carer/Home or child.

3.1 Other Plans/Records

The Social Worker should additionally complete or update the following records immediately or within specified timescales:

End