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CASE SUMMARY 1 COVENTRY CITY COUNCIL -v(1) C (2) B (3) CA (4) CH (2012)
[2012] EWHC 2190 (Fam) In Coventry, the applicant local authority applied for care and adoption orders concerning a child (C). C’s mother (M) sought her immediate return. C had been removed from M on the day of her birth, M’s consent having been obtained under the Children Act 1989 s.20. M had significant learning difficulties, was vulnerable and lacked parenting instincts. The local authority conceded M’s Human Rights Act 1998 s.7 claim, acknowledging that s.20 consent should not have been sought immediately post-birth and that removal had not been proportionate to the risks then existing. Hedley J. held that C’s welfare could only be promoted by permanent substitute care. M could not provide for her, and would be unable to learn to do so. In the absence of another family member, the care order had to be made. C’s permanent care would be best secured by adoption; a placement order would be made. The court was satisfied that C’s welfare required M’s consent to be dispensed with. It offered guidance to social workers in respect of obtaining s.20 consent to removal immediately or soon after birth: (a) every parent had a right, if capacitous, to consent under s.20 to their child’s accommodation, and every local authority had the power to accommodate, provided it was consistent with the child’s welfare; (b) every social worker had a personal duty to be satisfied that the person giving consent had capacity; (c) the social worker had to actively address capacity, take into account
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the circumstances and consider questions raised by the Mental Capacity Act 2005 s.3, particularly the mother’s capacity to use relevant information; (d) if the social worker had 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; (e) if the social worker was satisfied that the person had capacity, they had to be satisfied that consent was fully informed, involving questioning whether the parent understood the consequences of giving consent, appreciated the choices available and the consequences of refusal, and was in possession of the facts material to giving consent; (f) if not all those questions were satisfied, no attempt should be made to obtain consent on that occasion, advice should be sought and the social work team should consider taking legal advice; (g) if satisfied that consent was fully informed, the social worker also had to be satisfied that the consent and subsequent removal was fair and proportionate; (h) in considering that, it might be necessary to consider the parent’s physical and psychological state, whether they had a solicitor, whether they had been encouraged to seek legal advice and/or advice from family or friends, whether removal at that time was necessary for the child’s safety, and whether it would be fairer for the matter to be subject to a court order rather than agreement; (i) if, having done that and, if necessary, having taken further advice, the social worker considered that fully informed consent had been received from a capacitous mother where removal was necessary and proportionate, consent could be acted upon; (j) local authorities might want to approach with care the obtaining of s.20 consent from mothers in the aftermath of birth, especially where there was no immediate danger to the child and where it was probable that no order would be made. The guidance was not intended to discourage the use of s.20 consent from capacitous parents where it was proper to seek agreement to immediate post-birth accommodation.