- Recognition and Initial Response by all Professionals
- Referral to Children's Social Care
- Pre-Birth Assessments
- Pre-Birth Child in Need Meetings
- Pre-birth Child Protection Meetings
- Pre-Birth Child Protection Plan
- The Core Group Meeting
- Legal Planning Meeting (LPM)
- Guidance Where the Plan is for the Separation of the Mother and Baby following Birth
- Appendix 1: 'Birth Protection Plan'
- Appendix 2: 'Pre-Birth Consent to Accommodation' Form
- Appendix 3: 'Flowchart'
1. Recognition and Initial Response by all Professionals
If concerns are identified, health professionals in contact with pregnant women should routinely assess the needs of the mother and of the unborn baby. The midwife should consider whether a Common Assessment should be undertaken between the midwife, health visitor and other professionals involved with the family.
Where agencies or individuals anticipate that prospective parents may need support services to care for their baby, consideration should be give for initiating a Common Assessment to assess and consider the level of support services for the parent/s and the expected child.
These concerns should be addressed as early as possible before the birth, so that a full assessment can be undertaken and support offered to enable the parent/s (wherever possible) to provide safe care.
In some cases relevant records identifying one or more risk factors may only be available to the GP e.g. where an adult has moved frequently The GP must therefore consider the need for an early assessment or referral of the unborn baby when any of the factors listed below (apply to a prospective mother, father or carer.
Identifying concerns early, and wherever possible prior to 16 weeks gestation, will maximise time for:
- Full assessment, including establishing the whereabouts of any previous children;
- Enabling a healthy pregnancy;
- Supporting the parents so that (where possible) they can provide safe care.
Early identification of significant relative or family member who might be able to support or provide primary care
Parents should be informed as soon as possible of concerns and of the need for assessment, except on the rare occasions when medical advice suggests this may be harmful to the health of the unborn baby and/or mother*. If medical advice does suggest this, then a referral to Children's Social Care should be considered (see Section 2, Referral to Children's Social Care).At any stage professionals may wish to consult Children's Social Care about the appropriateness of a referral.
2. Referral to Children's Social Care
Where agencies or individuals anticipate that prospective parents may need support from Children's Social Care to care for their baby or that the baby may be at risk of Significant Harm, a referral to Children's Social Care must be made at the earliest opportunity.
The referrer should clarify as far as possible, using the Common Assessment Framework, their concerns in terms of how the parent's circumstances and / or behaviours may impact on the baby and what needs and risks are predicted. Where a Common Assessment has already been undertaken it should be used to support a referral to Children's Social Care: however undertaking a CAF is not a prerequisite for making a referral where there are safeguarding concerns
In circumstances where agencies or individuals are able to anticipate the likelihood of Significant Harm with regard to an expected baby (e.g. domestic violence, parental substance abuse or mental ill health), this should be referred to social care without delay as soon as the concerns are identified - see the Referrals Procedure.
Concerns should be shared with prospective parent/s and consent obtained to refer to Children's Social Care unless obtaining consent in itself may place the welfare of the unborn child at risk e.g. if there are concerns that the parent/s may move to avoid contact with investigative agencies.
Where consent is denied the referrer should consider whether a referral is still required in line with Child Protection Procedures.
A referral should be made at the earliest opportunity in order to:
- Provide sufficient time for a full and informed pre-birth assessment;
- Avoid initial approaches to parents in the last stages of pregnancy, at what is already an emotionally charged time;
- Enable parents to have more time to contribute their own ideas and solutions to concerns and increase the likelihood of a positive outcome for the expected child;
- Enable the early provision of support services so as to facilitate optimum home circumstances prior to the birth;
- Provide sufficient time to make adequate plans for the baby's protection where this is required.
3. Pre-Birth Assessments
A pre-birth Child and Family Assessment should be completed by Children's Social Care, working with partner agencies, within a maximum of 10 working days of the date of referral.
A pre-birth Child and Family Assessment will also be undertaken where children's social care determine the need for a more in-depth assessment and this will include the contribution of key agencies. The contribution of partners to the assessments will be considered in child in need meetings, Strategy Meetings and child protection conferences.
A Strategy Meeting must be held within 10 working days of the referral, where there are Child Protection concerns.
A pre-birth child in need meeting will be held where the assessment determines that there are no child protection concerns but that a support plan is required to support parents. The Child In Need meeting must involve relevant partner agencies.
4. Pre-Birth Child in Need Meetings
4.1 Initial Child in Need Planning Meeting
In cases where there are no immediate evident safeguarding concerns, an initial Child in Need planning meeting should convened by the social worker within 10 working days of the Child and Family Assessment to co-ordinate the Child in Need Plan and plan the pre-birth Child and Family Assessment with relevant agencies and the parents of the unborn child. Parents should be involved in planning throughout as far as possible.
Agencies/professionals who should be invited are:
- Children's Social Care Team Manager and social worker;
- Identified Midwife; or a representative from the Midwifery Service;
- Health Visitor;
- Any other professional involved with the family;
- The GPs of all family members;
- A representative of a Children's Centre, where appropriate;
- Relevant information held by the Police and Probation services should be obtained;
- Voluntary organisations where appropriate;
- Adults services where appropriate.
4.2 Timing of Child in Need Meetings
The timing of the meeting should be within 10 working days of the completion of the Child and Family Assessment and thereafter at least every 6 - 8 weeks.
Further Child in Need Meetings should be held at a frequency of 6-8weeks to ensure that the Child in Need plan is effectively progressing.Dates should be set for further Child in Need meetings as required and certainly by the 20th week of the pregnancy the meeting should be considering the outcome of assessments and the proposed plan.
4.3 Pre birth Assessments
A pre birth assessment must be carried out by a social worker, in conjunction with partners, where there are concerns relating to the mother and / or father's ability to parent the baby safely and where child protection concerns are evident.
This assessment is critical and will form the basis for decision-making, ensuring appropriate safeguarding plans are made pre-birth and to ensure the safety of the baby immediately following the birth.
The pre-birth assessment should include and consider
- Information from all agencies and take into account the views of all agencies involved including professionals who have previously worked with the parents;
- Include previous family history, chronology and draw upon any previous assessments or court proceedings for the family, either locally or in another local authority area and locating these and using the information to inform the current assessment is essential;
- Where families have moved around different local authority areas or within Coventry it is imperative that the social worker makes arrangements to view any associated reports and assessments;
- The birth father and if the father is not part of the household, it is still important to understand and assess what role the father / father's family will play in the baby's life;
- Any current and / or previous partners of the mother who play a role in the family and baby's life;
- Any other significant adults and young people who live with the mother or father or have significant contact with them must also be included in the pre-birth assessment;
- The pre-birth Assessment must examine what support that wider family members from both the maternal and paternal families may be able to provide, in addition to any risks they may present;
- The legal framework within which support to the family will be provided;
- Consideration of whether the baby will be separated from his/her parents and if so at what point.
The completed pre-birth Assessment Report should be considered at a further Child in Need meeting.
Where there are no child protection concerns but support may be required the status of this meeting will be Child In Need meeting and should include the parents and relevant agencies.
The purpose of the meeting is to consider the findings and recommendations of the pre-birth assessment report and make plans about next steps in relation to support and any necessary intervention to promote the welfare of the baby.The meeting should be held by the 24th week of the pregnancy.
5. Pre-birth Child Protection Meetings
In cases where the assessment s identify safeguarding concerns, an initial pre-birth Strategy Meeting should convened by the social worker within 10 working days of the Child and Family Assessment to plan the pre-birth Assessment with relevant agencies and the parents of the unborn child.
5.1 Strategy Meetings
Where the pre birth assessments identifies that there is reasonable cause to believe that the child will be at risk of Significant Harm when born, the status of any further meeting should be a Strategy Meeting held under child protection procedures within 10 working days of the referral or completion of the assessment and the following triggers are evident:
- Where concerns exist regarding either parent's ability to protect;
- A parent or other adult in the household, or regular visitor, has been identified as posing a risk to children;
- A sibling in the household is subject of a Child Protection Plan and /or the child is to be born into a family or household which previously had children subject to Child Protection Plans;
- A sibling has previously been removed from the household either temporarily or by court order (public and private proceedings);
- One or both parents are care leavers or have been known to Children's Social Care as Children in Need or in need of protection or are Looked After children;
- Domestic violence is known to have occurred within the family/significant relationships;
- Parental substance misuse (alcohol and drugs) has previously or is likely to impact significantly on the baby's safety or development;
- Parental mental illness / impairment is likely to impact significantly on the baby's safety or development;
- There are significant concerns about parental ability to self care and / or to care for the child e.g. unsupported, young or learning disabled mother;
- Any other concern exists that the baby may be at risk of Significant Harm including a parent previously suspected of fabricating or inducing illness in a child or harming a child;
- Where the expectant parent(s) are very young and a dual assessment of their own needs as well as their ability to meet the baby's needs is required;
- Where the pregnancy has been concealed and there is a need to consider the immediate safety of the expected child;
- A child aged under 13 is found to be pregnant;
- One or both parents have a history of violence or have committed crimes which suggest they may be present a risk to children;
- Children born into families where there is a history of sexual offences including where there are concerns about sexual exploitation.
The Strategy Meeting should include the agencies / professionals outlined below:
- Children's Social Care Team Manager (Chair);
- Social worker;
- Identified Midwife;
- Health Visitor;
- Any other professional involved with the family;
- The GPs of all family members;
- A representative of children centre, where appropriate;
- Police Child Abuse Investigation Unit;
- Legal Adviser if appropriate and where removal/accommodation at birth is a consideration; or where legal proceedings may be considered;
- Emergency Duty Team to ensure that they are fully aware of the risks and able to respond to any out of hours request for their intervention in an informed manner that is line with the Care Plan.
The Child Protection Strategy Meeting must consider:
- The findings of the pre-birth Assessment Report which should include previous family history and Chronology;
- The requirement for a Section 47 Enquiry;
- Who needs to be involved in the process;
- How and when the parent/s are to be informed of the concerns;
- The actions required by adult services working with expectant parent/s (male or female);
- The actions required by the obstetric team as soon as the baby is born. This includes labour / delivery suite, post-natal ward staff and the midwifery service, including community midwives and the Emergency Duty Team in the event that the birth takes place outside of normal office hours;
- Any instructions in relation to invoking an Emergency Protection Order (EPO) at delivery should be communicated to the midwifery manager for the labour / delivery suite and the Emergency Duty Team;
- The parents should be informed as soon as possible of the concerns and the need for assessment, except on the rare occasions when medical advice suggests this may be harmful to the health of the unborn baby and / or mother;
- Conclusions and recommendations for future action.
In undertaking a pre-birth Section 47 Enquiry and Child and Family Assessment, Children's Social Care, the police and relevant other agencies must follow the procedures described in the Child Protection Enquiries - Section 47 Children Act 1989 Procedure, in particular the section on Strategy Meetings.
The enquiry must make recommendations regarding the need, or not, for a Pre-Birth Child Protection Conference which should wherever possible be held 20 weeks prior to birth prior to the expected delivery date (by 20 weeks) or earlier if a premature birth is anticipated and within 15 working days of the Strategy Meeting.
If the Strategy Meeting concludes that it is likely the baby will be at risk of Significant Harm when born, arrangements are to be made for a Pre-birth Child Protection Conference. This applies whether or not there is an intention to take legal proceedings in respect of the child when born.
However practitioners should be reminded that there will be circumstances when notifications of concealed pregnancies may need to addressed close to the date of delivery.
If the conclusion of the pre-birth Child and Family Assessment /Section 47 Enquiry is the baby is likely to be at risk of Significant Harm in the parent(s) care, an Initial Child Protection Conference should be held to determine if the baby is at risk of Significant Harm when born and plan appropriate support and interventions.
In summary, the enquiry should identify:
- Risk factors;
- Strengths in the family environment;
- Factors likely / might change, how and why the reasons for this and the timescales;
- Areas for further assessment;
- Factors that will not change and why.
Child protection conferences
A Child Protection Conference should be convened where the above risk factors are present and where:
- A pre-birth assessment gives rise to concerns that an unborn child may be at risk of Significant Harm;
- A previous child has died or been removed from parent/s as a result of Significant Harm;
- A child is to be born into a family or household which already has children subject to Child Protection Plans;
- A person posing a risk to children resides in the household or is known to be a regular visitor;
- Other risk factors to be considered are:
- The impact of parental risk factors such as mental ill-health, learning disabilities, substance misuse (alcohol and drugs )and domestic violence;
- Teenage parents about whom there are concerns regarding their ability to self care and/or to care for the child.
5.2 If it is Suspected that a Child may be Born at Home whether Planned or Unplanned
In some situations the mother may have a planned or unplanned home delivery. This presents a number of challenges and additional risks, so planning for this eventuality is therefore of critical importance and must be incorporated into the Child Protection Plan.
The midwifery service and Children's Social Care have a duty to contact any relevant agencies if they have a concern about an unborn child.
If professionals are concerned that a child may be born at home or is likely to be delivered before getting to the hospital, the West Midlands Ambulance Service and the Emergency Duty Team should be notified.
The Emergency Duty Team should be informed of all relevant details concerning the unborn baby and mother. Any change of details obtained by agencies should be passed to the Lead Social Worker, who will responsible for forwarding the information to the Emergency Duty Team.
The Ambulance Service should be informed of all relevant details concerning the unborn baby and mother by the named nurse at UHCW.
The Ambulance Service and the Emergency Duty Team should be informed where a Pre-Birth Child Protection Conference has decided that the baby is likely to suffer Significant Harm and should be taken into Police Protection when s/he is born.
At the point it becomes known that labour has commenced the midwife will inform the named social worker or EDT worker and police immediately where the Child Protection Plan is separation. The police will need to attend the address as a matter of urgency, along with the midwife (if he/she is not already present). The police will not be in the same room during labour, but will be available in another room.The parent may request that the social worker is not present in the home, or is in a different room at the time of the birth and this should be adhered to.
During labour and following the birth, where it has been determined that leaving the child unsupervised in the care of parents poses a risk to the baby, the midwife must remain with mother and baby until the police and/or social worker arrive. If the mother or father tries to leave the house with the baby, the midwife must dial 999 immediately and request police assistance if they are not already present.
All babies born at home, where the plan is separation will require a new born examination; babies should not be accommodated until this is completed and discharge documentation completed. This may require transfer to hospital or can be done at home. The midwife should ensure that arrangements are made. The baby can only be removed from the mother with the consent of those with Parental Responsibility or under the auspices of Police Protection or an order of the court.
Discharge address for baby must be provided to enable midwifery postnatal visiting and correspondence regarding appointments.
5.3 Initial Child Protection Conference
Pre-Birth Child Protection Conferences should always be convened where there is a need to consider if a multi-agency Child Protection Plan is required.
Pre-birth conference is an Initial Child Protection Conference concerning an unborn child. Such a conference has the same status and proceeds in the same way, as other Initial Child Protection Conferences, including decisions about a Child Protection Plan; similarly in respect of Child Protection Review Conferences.
The involvement of midwifery services is vital in such cases at both the initial and the first review conference.
The key agencies involved in the delivery of the child must attend the Child Protection Conference.
In addition to those who normally attend Initial Child Protection Conferences, midwifery, relevant neo-natal and Children's Centre services must be invited.Parents or carers should be invited as they would be to other Child Protection Conferences and should be fully involved in plans for the child's future.
5.4 Timing of Child Protection Conferences
Pre-birth conference should take place at least 20 weeks before the due date of delivery, so as to allow as much time as possible for planning support for the baby and family and earlier if appropriate.
The first Review Conference should take place within 3 months of the date of the initial pre-birth conference. Where a review conference has been held prior to the birth of the baby, the Social worker and the Chair of conference should consider if a further review conference should convened within 6 weeks of the child's birth.
Children's Social Care undertaking or commissioning a post-natal assessment should ensure that the assessment is structured in such a way as to provide a comprehensive report to the Review Child Protection Conference.The midwifery service should be invited and attend the review conference to provide information about their assessment post the birth of the child
6. Pre-Birth Child Protection Plan
If a decision is made that the unborn child should be made subject of a Child Protection Plan, the conference should determine the category of concern and outline a Child Protection Plan to commence prior to the birth of the baby.
The Child Protection Plan must be explicit about the actions to be undertaken, and by whom, immediately following the baby's birth in order to ensure the baby's protection until the Review Conference.
This may include the need to separate the baby from its parents. This can be a traumatic experience for the family and needs to be carried out sensitively with clear planning in place to assist all professionals involved in undertaking their responsibilities.
It is essential the Initial Child Protection Conference has a clear focus on a safe outcome for the child, and makes clear recommendations for the Child Protection Plan (if required) and future meetings required (i.e. Core Group, Legal Planning Meeting (if not held prior to the ICPC), provides clarity on the specific safeguarding issues in relation to the baby, including any that present an immediate risk following birth, and recommendations as to how these should be managed and makes clear recommendations in relation to any requirement to separate the mother and baby at birth including the timing of this and if where the baby will be accommodated.
All agencies have a responsibility for ensuring that any known or potential risks to staff are communicated to enable them to undertaken an risk assessment related staff safety in relation to managing contact with family.
Once UHCW is aware of the risks posed from this meeting they will undertake a risk assessment and determine where the baby will be accommodated within the hospital based on the clinical situation and risk assessment.
The legal basis for any proposed separation of the mother and child needs to be considered and legal advice obtained.
The guidance below should be followed where the plan is for the separation of the mother and baby following birth.The Core Group must be established and should include all key services both within hospital and community.
7. The Core Group Meeting
The Core Group meeting should be held within 10 working days of the Initial Child Protection Conference and should include all relevant professionals (community midwife, health visitor and social care (including EDT). The mother and father, and any other appropriate family members, should also be invited and supported to attend.
The purpose of this first meeting is to add detail to the Child Protection Plan, which was agreed in outline at the Initial Child Protection Conference.
The Core Group meetings should be held prior to the birth and before the baby's return home after a hospital birth.Where the plan is for the mother and baby to be separated following the birth a Birth Protection Plan must be considered and agreed by the Core Group in line with the guidance below.
8. Legal Planning Meeting (LPM)
Where the social worker has assessed the baby as being at risk of Significant Harm at birth, they should book a Legal Planning Meeting (LPM) to seek legal advice on the plan for the child.
The timing of the meeting in most cases should be held prior to or immediately after the Initial Child Protection Conference unless the risk to the unborn is such that this advice to required to secure immediate safety for the child.
The purpose of a LPM is to ensure Children's Social Care professionals have full and accurate legal advice in order to effectively plan interventions that are appropriate. This will include establishing whether evidence is available that the legal threshold for applying for a court order to safeguard the baby has been met.
If a recommendation to separate the baby from its mother following the birth is a result of the Initial Child Protection Conference, the LPM should be booked as soon as possible following the meeting (i.e. within 10 days).
In situations where the birth of the baby is imminent, an emergency LPM should be requested or undertaken over the phone. In all other cases, the protocol for LPM's should be followed.
The LPM will be attended by a Children's Social Care Service Manager and solicitor from the Local Authority's Children and Adults Legal Team.
The aims of the LPM are:
- To consider and advise on the proposed plans for the baby at birth;
- To ensure that actions and arrangements for the birth are within a legal framework;
- If there is parental consent to the separation, to explore the nature of the consent and advise on whether this is informed consent and sufficient for the purpose;
- If Care Proceedings are proposed, to advise on whether the threshold criteria are met and consider and advise on the evidence for the proceedings;
- To agree the detailed process and timing for obtaining the necessary orders;
- To advise on any other matters of relevance.
In addition, where accommodation based on consent under Section 20 of the Children Act 1989 is to be considered, the LPM must detail specific planning in relation to this and any contingency plans required should consent not be agreed post birth. This should specifically include under what order the baby will be removed, the justification for this and how the legal processes will be undertaken.
The guidance below for cases where the plan is for separation of the mother and baby following birth should be followed.
If it is established or agreed at the LPM, following further evidence coming to light, which either differs from or was considered at the Initial Child Protection Conference and requires a significant change to the Child Protection Plan than this should be discussed with the Independent Reviewing Officer to consider whether to reconvene the Child Protection Conference.
Any deviation from the recommendations agreed at the Initial Child Protection Conference, should be recorded and reasons given why it deviates from the original agreement. The decisions and rationale behind these should be clear.
The social worker should inform the Independent Reviewing Officer (IRO) of this decision, who may then wish to reconvene the Initial Child Protection Conference.
9. Guidance Where the Plan is for the Separation of the Mother and Baby following Birth
9.1 Birth Protection Core Group Planning Meeting
Where professionals have known about the prospective birth of a baby and have followed the procedure for unborn babies set out above, the pre birth assessment will have been undertaken and the assessments and risks considered at the Child Protection Conference (CPC) and at a Legal Planning Meeting (LPM).
If the plan from the CPC and LPM is for the baby to be removed or accommodated following the birth then a Birth Protection Core Group Planning Meeting should be convened by the social worker and should include all relevant health professionals including, Children's Social Care (including EDT), the mother and father, and any other appropriate family members, who should be supported to attend. It is essential that a community midwife attends.
The meeting should be held as far in advance of the birth as is possible, once the pre birth assessment is complete, to enable the mother sufficient time to understand and come to terms with the Birth Protection Plan. The opportunity for the parents to meet with the proposed foster carers should also be explored.
The meeting will complete a practical (see Appendix 1: Birth Protection Plan) to be followed by all agencies once the baby is born. This will include ensuring information is shared with all relevant practitioners; clarify consent and contact issues; note any risk associated with the mother, father or other family members/known adults; and the separation of the baby from the mother.
If the mother and father are not present at the Birth Protection Core Group Planning Meeting, the meeting should go ahead. The social worker, or another agreed professional, should make all attempts to meet with them and discuss the Birth Protection Plan, ensuring that both their views are recorded and they are aware of the contents of the plan. They should also be encouraged to seek independent legal advice.
At the Birth Protection Core Group Planning Meeting the Birth Protection Plan and Pre Birth Consent to Accommodation must be explained fully to the mother; the mother may want to take the documents away to consider or to seek legal advise and an agreed time limit should be agreed for the social worker to meet again with the parents to receive the signed paperwork or record their views.A copy of the agreed Birth Protection Plan must be sent without delay to all relevant parties including parents and the Emergency Duty Team (EDT) in case the birth takes place out of office hours, with a request that EDT visit following the birth and prior to any removal.
9.2 Legal Framework
No local authority or social worker has any power to remove a child from its parents or to take a child into care without the parent(s) informed consent, unless they have obtained a court order authorising them to take that step.
It is not legally possible to apply for an order to remove a baby before the baby's birth because they have no legal identity in utero. It is also not possible to have the Section 20 paperwork signed to accommodate a baby with consent prior to the birth.
Except in emergency situations where the Police exercise their Police Protection powers, legal advice should always be sought when considering the removal of a baby.
Babies can only be removed or accommodated away from their mothers under the following circumstances:
- With the written, informed consent of the mother following the birth under Section 20 of the Children Act 1989; (see guidance on consent below);
- By the police using Police Protection (Section 46);
- With a court order under Section 44 (Emergency Protection Order, with or without notice) of the Children Act 1989;
- With a court order under Section 38 (Interim Care Order) of the Children Act 1989;
- In exceptional circumstances, a wardship order made by a judge of the Family Division of the High Court;
- Any person, for example a social worker or a health professional, may intervene, if necessary, to protect a child from immediate violence at the hands of a parent.
In addition, for medical reasons, any person with care of a child, for example a health professional, is able to do what is reasonable in all the circumstances to safeguard and promote the child's welfare under section 3(5) of the Children Act 1989. This section of the Act should only be used for medical reasons and not for child protection purposes.In extreme circumstances it may not be possible to work proactively with the mother, or both parents, in relation to these plans. If, in these exceptional circumstances, the assessment concludes that to inform the parents about the plan to remove/separate the baby from their care will place the baby at even greater risk of Significant Harm, legal advice should be sought. Consultation with the Legal Team is imperative in such cases in order to consider what steps are necessary to safeguard the baby immediately after birth.
9.3 Consent and Mental Capacity
The Mother (who always has Parental Responsibility) may give consent to the accommodation of her baby away from her care either following birth or upon discharge from hospital under Section 20 of the Children Act 1989. Usually, this is on the basis that the mother accepts that she is unable at that time, but not necessarily permanently, to provide the baby with suitable accommodation or care.
Fathers with Parental Responsibility can also give consent to the accommodation of their baby and this should be fully discussed. If there is conflict between the parents on the issue of consent, legal advice must be sought.
The social worker will need to obtain the mother's signature on the Pre-Birth Consent to Accommodation Form (See Appendix 2: 'Pre-Birth Consent to Accommodation' Form) which outlines that the mother understands the Birth Protection Plan and is giving her consent to the birth plan prior to the baby's birth.
This should be done as far in advance of the birth as is possible, once the pre birth assessment is complete, to enable the mother sufficient time to understand and come to terms with the Birth Protection Plan and her decision. The issue of consent should be discussed and reviewed with the mother and father throughout the process on a regular basis.
This will also enable the social worker to be confident that they have informed consent, if given. The closer to the birth the consent is obtained, the risks increase that it may not be informed consent due to the mother's emotions and vulnerability closer to the birth. The mother should also be encouraged to seek independent legal advice to help her make this decision.
The social worker must be clear that the mother understands the issue of consent and the Children's Social Care pre birth assessment and plan for their baby.
Section 20 Consent to Accommodate Prior to the Birth guidance
Further to Mr Justice Hedley's judgement of the 30th July 2012 this guidance has been updated.
Where it is the intention of the Local Authority to separate the baby from his/her parents such action should always be undertaken under a relevant legal order.
However, there will be cases where Section 20 accommodation is appropriate either where parents have a right to exercise parental responsibility by requesting accommodation under Section 20 and the local authority's powers of response under Section 20(4) must be respected, or where the LA seek parental consent to immediate post-birth accommodation. For example
- Where the mother's intention always has been and remains to have the child placed for adoption;
- Where a parent has always accepted that the child must be removed and has consistently expressed a willingness to consent (but not of course just to comply);
- Where a parent whether by reason of supervening physical health or personal circumstance positively seeks accommodation of the child by social services.
The judgement offers further guidance and in particular states
- Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child;
- Every social worker obtaining such a consent is 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 to do so;
- In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother's capacity at that time 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, 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 answers to a) - c) above are all 'yes', no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought 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 such consent and the subsequent removal is both fair and proportionate;
- In considering that it may be necessary to ask:
- 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 having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon;
- In the light of the foregoing, local authorities may want to 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.
Mental Capacity to give consent
Where consideration for separating the baby from his/her parents is given the Mental Capacity of the mother and the father where he has parental responsibility must be assessed
When there are concerns about a parent(s)' capacity to give informed consent, for example, if the parent(s) have learning difficulties or are known to have mental health issues, any professional involved with the family should seek further advice at the point when capacity to give consent is doubted. This will ensure the social worker has informed consent, especially important if the plan is for the baby to be removed or accommodated from its mother shortly after birth and highlight any concerns regarding the parents(s) capacity to give consent.
Mental Capacity is not always an easy judgment to make, and it is usually to be made by the person seeking to rely on the decision so obtained. Sometimes it will be necessary to seek advice from carers and family; occasionally a formal medical assessment may be required; always it will be necessary to have regard to Chapter 4 of the Code of Practice under the Mental Capacity Act 2005
Assistance is, however, to be found in Section 3 of the Act which provides by subsection (1) that a person is unable to make a decision if 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 decision.
The information relevant to a decision includes information about the reasonably foreseeable consequence of
- Deciding one way or the other; or
- Failing to make the decision.
Following the Birth
Following the birth of the baby the issue of consent will have to be revisited with the parents and the Section 20 paperwork completed and signed.
The social worker and other practitioners must acknowledge that a mother may be consenting to the Birth Protection Plan prior to birth, have signed the Pre-Birth Consent to Accommodation form and Birth Protection Plan, but can change her mind at any point and in particular she may change it after the baby is born.
Any person with Parental Responsibility for a baby may at any time withdraw their consent to the baby being Accommodated by the local authority under section 20 Children Act 1989 and remove the child from the hospital or other setting.
Contingency plans recorded in the Birth Protection Plan will need to be considered should parental consent be withdrawn or any professional is no longer satisfied that there is informed consent at birth.
The timing of this revisit to the matter of consent after birth is sensitive and critical and should be decided on a case by case basis. It should be discussed by professionals and advice sought around what is a reasonable period to leave after the birth before asking the mother to sign the Section 20 paperwork. In addition, the situation following the birth should be assessed in relation to the health and emotional impact of the birth on the mother.There will be situations when the decision is taken to separate mother and baby but it is deemed appropriate and safe for mother and baby to remain together in hospital for an agreed number of days. In these cases, consent should be re visited shortly prior to discharge, confirmed by the social worker and the Section 20 paper work signed.
9.4 Separating the Baby from the Mother
The hospital / midwife should notify the named social worker, team manager or EDT worker if out of hours, as soon as mother is admitted into hospital in labour and implement the Birth Protection Plan (BPP) with delegated responsibilities and initial actions clearly identified.
If any safeguarding concerns are identified for a women admitted to the hospital in labour where there is no BPP, the hospital must contact the appropriate Social Care Duty Team (or EDT out of hours) to establish what safeguarding measures are required. Where required, Social Care will contact the Children's Services Legal Department for advice.
The hospital should nominate a named midwife or nurse to coordinate the Birth Protection Plan from within the hospital setting. They will liaise with other practitioners to ensure all appropriate information, contact details, etc, are shared and joint working arrangements are in place.
It will also be important for the hospital to nominate a midwife or member of ward staff to provide support to the mother during the separation process.
Where there is a plan already agreed with the mother to separate mother and baby at birth (under Section 20 of the Children Act 1989), a social worker must check there is still informed, explicit consent for the separation and ensure appropriate support for the mother is available after the baby is born.
The timing of the separation should have been decided at the Birth Protection Core Group Planning Meeting. This is a sensitive issue, especially if the decision is one to accommodate shortly after birth needs to be meticulously thought through and recorded in the Birth Protection Plan.
If a baby is to be accommodated shortly after birth, a decision will have been made whether this is to be immediately or whether it is safe for the mother to have a short period of time, for example two hours with the baby before it is accommodated on another ward. This should be clearly defined within the BPP.
The BPP should explicitly state the timing of the separation of the baby from the mother and whether this is to be at birth or at the point of discharge.
Separation Immediately following BirthIn a small minority of cases babies will need to be removed or separated from their mother immediately after birth to ensure their safety and protection. In these cases the BPP should clearly outline the plan and contingency plans to be followed.
Separation at Discharge from Hospital
In the majority of cases, babies will be able to remain with their mothers prior to Separation, which takes place just before discharge from the hospital. In these cases the BPP should outline the plan and contingency plans to be followed
9.5 Contact Arrangements
The Birth Protection Core Group Planning Meeting should consider and agree any requirements for supervised contact between the baby and its mother, father and any other family members, particularly during and after the birth. The mother and father wishes and views should be taken into account including their views about when Children's Social Care should visit the hospital (for example outside family visiting hours).
The Birth Protection Plan must detail what the contact arrangements will be following the accommodation of the baby. The arrangements will be based on recommendations from the initial child protection case conference and legal advice from the LPM and must take the mother's wishes and feelings into account. In some cases, the mother may have given her consent to the accommodation of her baby on the basis she will have contact whilst the baby is in hospital but on a separate ward. If the mother also wishes to breast feed her baby consideration also needs to be given as to how this will be managed.
The BPP should document who will be responsible for supervising the contact between baby and the parent(s), the frequency of contact and any additional arrangements in specific circumstances, for example, clarification around handling and feeding of the baby, if necessary. If there are high concerns around these issues, care proceedings should be considered at the earliest opportunity to enable a court to make the final decisions and to prevent possible infringement of the parent(s) human rights. These issues need to be considered at the LPM, if it is felt they should be included in the Birth Protection Plan.
Consideration should be given as to whether relatives are able to supervise contact following discussions and Child and Family Assessment of their suitability, undertaken by the social worker, ideally as part of the pre birth assessment. It is not always possible that hospital staff will be able to undertake the supervision on behalf of the Local Authority.
9.6 Out of Hours Births
Whilst mother may go into labour during working hours, it is more likely that the baby will be born outside of these, during the evening, in the early hours of the morning, at the weekend or on a bank holiday. Therefore it will be necessary for the responsible social worker to ensure the following:
- All relevant information and paperwork, including the Birth Protection Plan have been sent to the Emergency Duty Team (EDT). It will be necessary to fax information and to have dialogue with EDT to ensure that all Children's services staff are clear about the plan;
- That further information is shared with EDT to alert them to the fact the baby may be born during the night etc. EDT should be referred to the Birth Protection Plan and under what legal basis the baby should be removed or accommodated;
- That the Legal Team is notified at the point information is received informing Children's Social Care that mother has gone into labour. The responsible worker will need to ensure that the Legal Team is updated and an application for an Interim Care Order is made at the earliest opportunity. Where the baby is born out of hours, this should be actioned on the next working day.