CA (A Baby), Re

A parental agreement under section 20 of the Children Act 1989 must be genuine and lawful. The parent must have capacity to consent, the consent must be fully informed, and obtaining it must be fair and proportionate. Consent cannot be used as compulsion in disguise or to circumvent the need for a court order. In post-birth separation cases, social workers must assess the parent’s capacity at the time and in relation to the particular decision, explain the consequences of consent and refusal, consider legal advice and the parent’s condition, and ask whether removal is necessary and proportionate. Immediate accommodation may nevertheless be proper where the parent positively seeks it, consistently accepts removal, or intends adoption.

Coventry City Council sought care and placement orders for CA, a baby born on 1 February 2012. The mother sought CA’s return. CA had been removed from hospital after the mother agreed to accommodation under section 20 of the Children Act 1989. The mother and child brought a human-rights claim under section 7 of the Human Rights Act 1998, which the local authority conceded and resolved. The remaining issue was the proper ambit and use of section 20 agreements, particularly where consent was sought immediately after birth.

1. Orders. Applying section 1 of the Children Act 1989, CA’s welfare required permanent substitute care. The court therefore made a care order. Under sections 1 and 52 of the Adoption and Children Act 2002, adoption was the best means of securing her future care and the mother’s consent was dispensed with because CA’s welfare required it. A placement order was made.
2. Human-rights resolution. The local authority accepted that section 20 consent should not have been sought in the circumstances and that removal was disproportionate. It accepted breaches of the Article 8 rights of both mother and child. The agreed damages and related provisions were approved as just satisfaction.
3. Lawfulness of section 20 consent. Section 20 lies within Part III of the Children Act 1989, which emphasises partnership and does not compulsorily curtail parental responsibility. It must not be used as compulsion in disguise. The parent must have capacity under sections 1–3 of the Mental Capacity Act 2005. Capacity is decision-specific and situation-specific, and must be assessed at the time consent is sought.
4. Where capacity exists, consent must be properly informed, fairly obtained and proportionate. The parent must understand the consequences of consenting and refusing, the available choices and the material facts. Consent cannot be inferred from silence, submission or acquiescence; it requires a positive decision.
5. In an immediate post-birth separation, the social worker must personally assess capacity, including the parent’s ability to understand, retain, use and weigh relevant information. If capacity or informed consent is doubtful, further attempts to obtain consent should stop and appropriate social-work and legal advice should be sought. The social worker must also consider the parent’s physical and psychological state, access to advice, the necessity of immediate removal, proportionality, and whether a court order would be fairer.
6. It is impermissible to obtain agreement to achieve what could not properly be authorised by court order, merely to circumvent the court. Agreement may nevertheless be proper where the parent intends adoption, consistently accepts removal, or positively seeks accommodation. Local authorities should exercise particular caution after birth where there is no immediate danger and a court would probably make no order.