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136 <h1>
136 Capacity and Consent
136 </h1>
141 <div class="well">
142 <p class="bold">
142 SCOPE OF THIS CHAPTER
142 </p>
143 <p>
143 In this chapter guidance is offered in relation to the various situations in which consent
is likely to be sought, with reference to previous legal judgements. This is a potentially
complex practice arena and if the practitioner is in any doubt about gaining consent they
should always seek further advice from managers and legal advice must be sought as
necessary.
143 </p>
144 <p>
144 This chapter was added to the manual in August 2020.
144 </p>
145 </div>
152 <div class="section">
153 <h2 id="introd">
153 1. Introduction
153 </h2>
154 <p>
154 Whenever a professional requires the consent of a client, whether adult or child, to a
particular decision or course of action, the issue of their Capacity to respond
appropriately to the request must be considered. Issues of Capacity and Consent may arise in
various contexts. It may be necessary to consider the legal Capacity of parents and/or
children/young people to make decisions and give valid, informed consent.
154 </p>
155 <p>
155 Legal Capacity can fluctuate and, for consent to be valid, it must be made by a person who
has the legal Capacity to make that decision at that time, having a clear, fully-informed
understanding of what it is they are consenting to. This will include the likely outcomes
which may flow from the consent being given.
155 </p>
156 <p>
156 Issues of Capacity and Consent may arise, for example, in relation to:
156 </p>
157 <ul>
158 <li>
158 Assessments and Early Help interventions;
158 </li>
159 <li>
159 Information-sharing;
159 </li>
160 <li>
160 Legal proceedings, eg where a Gillick competent child desires separate legal
representation and/or their wishes differ from the views of their Guardian ad Litem;
160 </li>
161 <li>
161 Dealing with parents with learning disabilities/mental health problems;
161 </li>
162 <li>
162 Children becoming looked after, eg parental agreement to children being accommodated
under section 20 Children Act 1989;
162 </li>
163 <li>
163 Delegation of authority to carers in respect of day-to-day matters;
163 </li>
164 <li>
164 Consent in relation to health assessments and medical treatment;
164 </li>
165 <li>
165 Parental consent to adoption or a Special Guardianship Order;
165 </li>
166 <li>
166 Deprivation of liberty of a child/young person.
166 </li>
167 </ul>
168 </div>
169 <div class="section1">
169 </div>
175 <div class="section">
176 <h2 id="consent">
176 2. Consent
176 </h2>
177 <p>
177 For consent to be valid, it must be given voluntarily by an appropriately informed person
who has the capacity to consent to the particular intervention in question at that
particular time.
177 </p>
178 <p>
178 Once it has been determined that a person has the capacity to make a particular decision at
a particular time, a further requirement (under the common law) for that consent to be valid
is that it must be given voluntarily and freely, without pressure or undue influence being
exerted upon them.
178 </p>
179 <p>
179 Acquiescence where the person does not fully understand what they are being asked to agree
to is not 'consent'.
179 </p>
180 <h3>
180 Consent to Information Sharing
180 </h3>
181 <p>
181 <a
href="https://www.gov.uk/government/publications/safeguarding-practitioners-information-shar
ing-advice" target="_blank" rel="noopener">
181 Information sharing: advice for safeguarding practitioners
181 </a>
181 includes a Myth-busting guide that states:
181 </p>
182 <p>
182 <span class="italic">
182 Wherever possible, you should seek consent and be open and honest with the individual from
the outset as to why, what, how and with whom, their information will be shared. You
should seek consent where an individual may not expect their information to be passed on.
When you gain consent to share it must be explicit and freely given.
182 </span>
182 </p>
183 <p class="italic">
183 There may be some circumstances where it is not appropriate to seek consent, either because
the individual cannot give consent, it is not reasonable to obtain consent, or because to
gain consent would put a child or young person's safety or well-being at risk. Where a
decision to share information without consent is made, a record of what has been shared
should be kept.
183 </p>
184 <p>
184 For further information please refer to your Information Sharing (in the Safeguarding
Children Partnership procedures).
184 </p>
185 <p>
185 Key considerations for practitioners seeking consent
185 </p>
186 <ul>
187 <li>
187 Whenever asking someone, whether adult or child, to give their consent ensure they are
able, at that time, in that place and under those circumstances, to give it freely and
voluntarily with a full understanding of the decision itself and the potential
implications of the decision;
187 </li>
188 <li>
188 For the detail regarding specific 'consents' check with the sections of this chapter
below;
188 </li>
189 <li>
189 If in doubt consult a manager;
189 </li>
190 <li>
190 Consider whether someone being asked to give consent may need independent support (for
example because they have learning difficulties, they use English as a second language);
190 </li>
191 <li>
191 Consider whether someone being asked to give consent is able, at that time and in that
place, to give it freely and with full understanding (for example, checking they are not
under the influence of medication, drugs or alcohol at that time);
191 </li>
192 <li>
192 Consider the mental health of the person being asked to give consent. Are they stressed,
isolated, subject to delusions or hearing 'voices'? Are their symptoms intermittent or
long term? Do they have access to support when being asked to give consent? Is medical
advice regarding their ability to give consent required?
192 </li>
193 <li>
193 Be prepared to explain what is being asked for and what the implications of consent may
be;
193 </li>
194 <li>
194 Be prepared to give time for seeking advice (from, for example, a solicitor) and to think
carefully about the consent they are being asked to give;
194 </li>
195 <li>
195 Be clear about the implications of not giving consent;
195 </li>
196 <li>
196 Record what has been agreed, share and ask the person concerned to sign to say they have
read and agreed to what has been recorded.
196 </li>
197 </ul>
198 <p>
198 The GDPR and Data Protection Act 2018 do not prevent, or limit, the sharing of information
for the purposes of keeping children and young people safe.
198 </p>
199 <p>
199 To effectively share information:
199 </p>
200 <ul>
201 <li>
201 All practitioners should be confident of the processing conditions, which allow them to
store, and share, the information that they need to carry out their safeguarding role.
Information which is relevant to safeguarding will often be data which is considered
'special category personal data' meaning it is sensitive and personal;
201 </li>
202 <li>
202 Where practitioners need to share special category personal data, they should be aware
that the Data Protection Act 2018 includes 'safeguarding of children and individuals at
risk' as a condition that allows practitioners to share information without consent;
202 </li>
203 <li>
203 Information can be shared legally without consent, if a practitioner is unable to, cannot
be reasonably expected to gain consent from the individual, or if to gain consent could
place a child at risk;
203 </li>
204 <li>
204 Relevant personal information can be shared lawfully if it is to keep a child or
individual at risk safe from neglect or physical, emotional or mental harm, or if it is
protecting their physical, mental, or emotional well-being.
204 </li>
205 </ul>
206 <p>
206 See
206 <a
href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_
data/file/721581/Information_sharing_advice_practitioners_safeguarding_services.pdf#page=5
" target="_blank" rel="noopener">
206 The General Data Protection Regulation (GDPR) and Data Protection Act 2018
207 </a>
207 .
207 </p>
208 </div>
209 <div class="section1">
209 </div>
215 <div class="section">
216 <h2 id="legal">
216 3. Legal Capacity in Relation to Parents/those with Parental Responsibility
216 </h2>
217 <h3>
217 3.1 Capacity in Relation to Adults
217 </h3>
218 <p>
218 The Mental Capacity Act 2005 defines a person who lacks capacity as a person who is unable
to make a decision for themselves because of an impairment or disturbance in the functioning
of their mind or brain. It does not matter if the impairment or disturbance is permanent or
temporary. A person lacks capacity if:
218 </p>
219 <ul>
220 <li>
220 They have an impairment or disturbance (for example a disability, condition or trauma or
the effect of drugs or alcohol) that affects the way their mind or brain works; and
220 </li>
221 <li>
221 That impairment or disturbance means that they are unable to make a specific decision at
the time it needs to be made.
221 </li>
222 </ul>
223 <p>
223 An assessment of a person's capacity must be based on their ability to make a specific
decision at the time it needs to be made, and not their ability to make decisions in
general. A person is unable to make a decision if they cannot do one or more of the
following things:
223 </p>
224 <ul>
225 <li>
225 Understand the information given to them that is relevant to the decision;
225 </li>
226 <li>
226 Retain that information long enough to be able to make the decision;
226 </li>
227 <li>
227 Use or weigh up the information as part of the decision-making process communicate their
decision – this could be by talking or using sign language and includes simple muscle
movements such as blinking an eye or squeezing a hand.
227 </li>
228 </ul>
229 <p>
229 People may have capacity to consent to some interventions but not to others, or may have
capacity at some times but not others. Under the Mental Capacity Act, a person must be
assumed to have capacity unless it is established that they lack capacity.
229 </p>
230 <p>
230 A person's capacity to consent may be temporarily affected by factors such as confusion,
panic, shock, fatigue, pain or medication. However, the existence of such factors should not
lead to an automatic assumption that the person does not have the capacity to consent.
230 </p>
231 <p>
231 Capacity should not be confused with a practitioner's assessment of the reasonableness of
the person's decision. Under the Mental Capacity Act and the common law, a person is not to
be treated as unable to make a decision merely because they make an unwise decision. A
person is entitled to make a decision which may be perceived by others to be unwise or
irrational, as long as they have the capacity to do so.
231 </p>
232 <p>
232 However, if the decision that appears irrational is based on a misperception of reality, as
opposed to a different value system to that of the practitioner – for example a person with
anorexia nervosa who is unable to comprehend their failing physical condition – then the
person may not be able to comprehend, weigh or make use of the relevant information and
hence may lack the capacity to make the decision in question.
232 </p>
233 <p>
233 The Mental Capacity Act also requires that all practical and appropriate steps are taken to
enable a person to make the decision themselves. These steps include the following:
233 </p>
234 <ul>
235 <li>
235 Providing relevant information. For example, if there is a choice, has information been
given on the alternatives?
235 </li>
236 <li>
236 Communicating in an appropriate way. For example, could the information be explained or
presented in a way that is easier for the person to understand?
236 </li>
237 <li>
237 Making the person feel at ease. For example, are there particular times of the day when a
person's understanding is better?
237 </li>
238 <li>
238 Supporting the person. For example, can anyone else help or support the person to
understand information and to make a choice?
238 </li>
239 </ul>
240 <p>
240 A mental capacity assessment must be carried out when:
240 </p>
241 <ol style="list-style-type:lower-alpha">
242 <li>
242 There are indicators that the person may not be able to make the decision at the time that
it needs to be made; and
242 </li>
243 <li>
243 There is evidence that the person has (or may have) an impairment of, or disturbance in
the functioning of the mind or brain; and
243 </li>
244 <li>
244 The reason that the person may not be able to make the decision is related to (or may be
related to) the impairment in, or disturbance of the functioning of the mind or brain.
244 </li>
245 </ol>
246 <h3>
246 3.2 Parents with a Learning Disability
246 </h3>
247 <p>
247 A learning disability is a permanent life-long condition, which results in:
247 </p>
248 <ul>
249 <li>
249 A significantly reduced ability to understand new or complex information, to learn new
skills (impaired intelligence);
249 </li>
250 <li>
250 A reduced ability to cope independently (impaired social functioning), which started
before adulthood, with a lasting effect on development.
250 </li>
251 </ul>
252 <p>
252 However, many people who have a diagnosed learning disability prefer to use the term
'learning difficulty'. They feel that the term 'learning disability' implies that they
cannot learn at all.
252 </p>
253 <p>
253 There is a far wider group of parents with learning difficulties, who do not have a
diagnosis and would not generally fit the eligibility criteria for support services in their
own right.
253 </p>
254 <p>
254 Historically IQ testing was used as an assessment method in an attempt to categorise degrees
of learning disability, however, modern assessments use a broader approach to assess
strengths and needs, and should be part of a person-centred approach to care and support
planning, leading to a person-centred plan describing what is important to and important for
the individual to live a good life with as much choice and control as possible.
254 </p>
255 <p>
255 The case of
255 <a href="https://www.familylawweek.co.uk/site.aspx?i=ed187422" target="_blank"
rel="noopener">
255 A Local Authority v G (Parent with Learning Disability) [2017] EWFC B94
255 </a>
255 identified five key features of good practice in working with parents with learning
disabilities:
255 </p>
256 <ul>
257 <li>
257 Accessible information and communication;
257 </li>
258 <li>
258 Clear and co-ordinated referral and assessment procedures and processes, eligibility
criteria and care pathways;
258 </li>
259 <li>
259 Support designed to meet the needs of parents and children based on assessments of their
needs and strengths;
259 </li>
260 <li>
260 Long-term support where necessary;
260 </li>
261 <li>
261 Access to independent advocacy.
261 </li>
262 </ul>
263 <p>
263 The case also highlighted the need for specialist:
263 </p>
264 <p>
264 <span class="bold">
264 Training
264 </span>
264 - specialist training on dealing with parents with a learning disability, emphasising how
best to work with the parents and how to deliver the right support.
264 </p>
265 <p>
265 Accessible information and communication:
265 </p>
266 <p>
266 <span class="bold">
266 Communication
266 </span>
266 - communicating with parents in a way they understand.
266 </p>
267 <p>
267 This may include:
267 </p>
268 <ul>
269 <li>
269 Taking more time to explain things;
269 </li>
270 <li>
270 Telling parents things more than once and checking their understanding of what has been
said;
270 </li>
271 <li>
271 Considering in advance how best to prepare for meetings, and discussing with parents
whether they would like an Advocate to support them to prepare for the meeting and take
part in it;
271 </li>
272 <li>
272 Hands-on approaches, such as role-play, modelling, and filming tasks being completed;
272 </li>
273 <li>
273 Step by step pictures showing how to undertake a task;
273 </li>
274 <li>
274 Repeating tasks regularly and providing opportunities for frequent practice;
274 </li>
275 <li>
275 Use of 'props', for example, containers which will hold the right amount of milk.
275 </li>
276 </ul>
277 <p>
277 Parents should be told, in plain language, what any assessment is, what it is for, what it
will involve, and what will happen afterwards. They may need to be told more than once, for
example, a parent may need to be reminded what happened at the last meeting.
277 </p>
278 <p>
278 For further information please refer to your Children of Parents with Learning Disabilities.
278 </p>
279 <p>
279 See also
279 <a
href="https://webarchive.nationalarchives.gov.uk/20080817163624/http://www.dh.gov.uk/en/Publ
icationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_075119"
target="_blank" rel="noopener">
279 Good Practice Guidance on Working with Parents with a Learning Disability (DoH/DfES, 2007)
279 </a>
279 .
279 </p>
280 <p>
280 The Working Together with Parents Network have produced an update of this guidance –
280 <a
href="https://www.bristol.ac.uk/media-library/sites/sps/documents/wtpn/2016%20WTPN%20UPDATE%
20OF%20THE%20GPG%20-%20finalised%20with%20cover.pdf" target="_blank" rel="noopener">
280 Working Together with Parents Network Good Practice Guidance on Working with Parents with
a Learning Disability (2016)
280 </a>
280 .
280 </p>
281 <h3>
281 3.3 Parents with Mental Health Problems
281 </h3>
282 <p>
282 Mental health problems are proportionately common in the overall population. The term does
not in itself have one clear definition, and therefore the existence of mental health
problems should not be taken as a risk factor without contextual information.
282 </p>
283 <p>
283 The state of a person's mental health is usually not static and can vary according to
several factors, correspondingly their capacity to parent safely may also be variable, and
therefore, an understanding of the factors which may increase risk is an important part of
any assessment.
283 </p>
284 <p>
284 For further information please refer to your Children of Parents with Mental Health
Problems.
284 </p>
285 <p>
285 See also:
285 </p>
286 <p>
286 <a href="https://www.scie.org.uk/publications/guides/guide30/" target="_blank"
rel="noopener">
286 Think child, think parent, think family: a guide to parental mental health and child
welfare
286 </a>
286 </p>
287 <p>
287 <a href="https://www.scie.org.uk/publications/briefings/briefing23/" target="_blank"
rel="noopener">
287 Stress and resilience factors in parents with mental health problems and their children
287 </a>
287 </p>
288 <h3>
288 3.4 Section 20 Accommodation - Obtaining Parental Consent
288 </h3>
289 <p>
289 A Court of Appeal hearing
289 <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2017/26.html" target="_blank"
rel="noopener">
289 (L B Hackney v Williams & Anor [2017] EWCA Civ 26)
289 </a>
289 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'.
289 </p>
290 <p>
290 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.
290 </p>
291 <p>
291 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'.
291 </p>
292 <p>
292 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.
292 </p>
293 <p>
293 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). 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.
293 </p>
294 <p>
294 Detailed guidance on the obtaining of parental consent was given by the High Court in the
case of Re CA (A Baby) (2012):
294 </p>
295 <ul>
296 <li>
296 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 they are unable:
297 <ul>
298 <li>
298 To understand the information relevant to the decision;
298 </li>
299 <li>
299 To retain that information;
299 </li>
300 <li>
300 To use or weigh that information as part of the process of making the decision; or
300 </li>
301 <li>
301 To communicate their decision.
301 <br>
302 The High Court in Re
302 <a href="https://www.familylawweek.co.uk/site.aspx?i=ed182616" target="_blank"
rel="noopener">
302 S (Child as parent: Adoption: Consent) [2017] EWHC 2729 (Fam)
302 </a>
302 set out the relevant information that a parent would need to be able to understand,
retain and weigh up in order to have competency to consent to the accommodation of a
child:
302 </li>
303 </ul>
304 <ol style="list-style-type:lower-roman">
305 <li>
305 That the child will be staying with someone chosen by the local authority, probably a
foster carer;
305 </li>
306 <li>
306 That the parent can change their mind about the arrangements, and request the child
back from accommodation at any time;
306 </li>
307 <li>
307 That the parent will be able to see the child.
307 </li>
308 </ol>
309 </li>
310 <li>
310 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;
310 </li>
311 <li>
311 If satisfied that the parent has Capacity, the social worker must be satisfied that the
consent is fully informed:
312 <ul>
313 <li>
313 Does the parent fully understand the consequences of giving such consent?
313 </li>
314 <li>
314 Does the parent fully appreciate the range of choice available and the consequences of
refusal as well as giving consent?
314 </li>
315 <li>
315 Is the parent in possession of all the facts and issues material to the giving of
consent and can this be demonstrated?
315 </li>
316 </ul>
317 </li>
318 <li>
318 If not satisfied that the consent is 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;
318 </li>
319 <li>
319 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:
320 <ul>
321 <li>
321 What is the current physical and psychological state of the parent?
321 </li>
322 <li>
322 If they have a solicitor, have they been encouraged to seek legal advice and/or advice
from family or friends?
322 </li>
323 <li>
323 Is it necessary for the safety of the child for her to be removed at this time?
323 </li>
324 <li>
324 Would it be fairer in this case for this matter to be the subject of a court order
rather than an agreement?
324 </li>
325 </ul>
326 </li>
327 </ul>
328 <p>
328 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,
in all probability, no order would be made).
328 </p>
329 <p>
329 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.
329 <span class="bold">
329 Note
329 </span>
329 : 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'.
329 </p>
330 <p>
330 <span class="bold">
330 Note
330 </span>
330 that the High Court in Re S (Child as parent: Adoption: Consent) made clear that parental
Capacity to consent to a child being accommodated under s.20 Children Act 1989, does not
equate to their capacity to consent to an adoption order in respect of the child - the
capacity to consent is decision-specific.
330 </p>
331 <h4>
331 Recording Parental Consent
331 </h4>
332 <p>
332 In Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 the (then) 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:
332 </p>
333 <ul>
334 <li>
334 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;
334 </li>
335 <li>
335 The written document should be clear and precise as to its terms, drafted in simple and
straight-forward language that the particular parent can readily understand;
335 </li>
336 <li>
336 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';
336 </li>
337 <li>
337 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'.
337 </li>
338 </ul>
339 <h3>
339 3.5 Consent to Adoption
339 </h3>
340 <p>
340 <span class="bold">
340 Relinquished Children
340 </span>
340 (where parents are requesting that their child be placed for adoption)
340 </p>
341 <p>
341 The Local Authority as the Adoption Agency must be sure that the parent or the guardian is
competent to give consent.
341 </p>
342 <p>
342 During the counselling sessions, care should be given to identifying whether the parent(s)
are capable of giving consent, especially if there is evidence of: learning disabilities;
mental health issues; cultural, ethnic or faith issues; consent being given conditionally,
etc.
342 </p>
343 <p>
343 Where there is concern as to the parent's understanding, an additional and specialist
assessment should be sought from another professional - preferably someone who already knows
the parent, such as an approved mental health social worker; a disabilities social worker;
GP; midwife or health visitor; psychiatrist / psychologist or someone who can offer a faith
or cultural perspective.
343 </p>
344 <p>
344 If the issue of competency is known at the point of referral or at an early stage in the
process, then the Local Authority should not ask Cafcass to witness consent, until any such
issues are resolved. Where a parent is under 18 years (i.e. considered to be a 'child'
themselves within the meaning of the Children Act 1989), they can be considered to give
valid consent if assessed as competent by the counselling practitioner.
344 </p>
345 <p>
345 The High Court in Re
345 <a href="https://www.familylawweek.co.uk/site.aspx?i=ed182616" target="_blank"
rel="noopener">
345 S (Child as parent: Adoption: Consent) [2017] EWHC 2729 (Fam)
345 </a>
345 made clear that parental Capacity to consent to a child being accommodated under s.20
Children Act 1989, does not equate to their capacity to consent to an adoption order in
respect of the child - the capacity to consent is decision-specific. (That case concerned a
'child parent' (i.e. below 18 years of age) with learning disabilities. The principles,
however, will be of relevance in considering parental capacity, irrespective of their age).
345 </p>
346 <p>
346 The court set out the salient or 'sufficient' information which is required to be understood
by a parent regarding extra-familial adoption:
346 </p>
347 <ol style="list-style-type:lower-alpha">
348 <li>
348 Your child will have new legal parents, and will no longer be your son or daughter in law;
348 </li>
349 <li>
349 Adoption is final, and non-reversible;
349 </li>
350 <li>
350 During the process, other people (including social workers from the adoption agency) will
be making decisions for the child, including who can see the child, and with whom the
child will live;
350 </li>
351 <li>
351 You may obtain legal advice if you wish before taking the decision;
351 </li>
352 <li>
352 The child will live with a different family forever; you will (probably) not be able to
choose the adopters;
352 </li>
353 <li>
353 You will have no right to see your child or have contact with your child; it is highly
likely that direct contact with your child will cease, and any indirect contact will be
limited;
353 </li>
354 <li>
354 The child may later trace you, but contact will only be re-established if the child wants
this;
354 </li>
355 <li>
355 There are generally two stages to adoption; the child being placed with another family for
adoption, and being formally adopted;
355 </li>
356 <li>
356 For a limited period of time you may change your mind; once placed for adoption, your
right to change your mind is limited, and is lost when an adoption order is made.
356 </li>
357 </ol>
358 <p>
358 When determining the competence of a parent in these circumstances, 'all practicable
steps' must be taken to help them to make the decision, for example using simple language,
visual aids or other means. A parent will be treated as understanding the information
relevant to a decision if they are able to understand an explanation of it given to them in
a way which is appropriate to their circumstances.
358 </p>
359 <p>
359 The decision to consent to adoption is significant and life-changing. Before exercising
their decision-making, the parent should freely and fully understand the information set out
on the consent forms, which should be conveyed and explained to them in an appropriate way;
there is no expectation that the parent would be able to understand the precise language of
the consent forms.
359 </p>
360 <p>
360 If there is any doubt about the competence of a parent to give consent to adoption or
placement for adoption, the issue should be referred to a court.
360 </p>
361 <p>
361 Where it is considered that the parent is not capable of giving informed consent but the
Local Authority decide to place the child for adoption following their counselling and
assessment, an application for a placement order must be made (see
361 <a href="http://www.legislation.gov.uk/ukpga/2002/38/section/22" target="_blank"
rel="noopener">
361 Section 22(1) Adoption and Children Act 2002
361 </a>
361 ).
361 </p>
362 <p>
362 (Please refer to your Court Reports in Placement Order Applications and in Adoption/Special
Guardianship Guidance, Placement Order Application).
362 </p>
363 </div>
364 <div class="section1">
364 </div>
370 <div class="section">
371 <h2 id="rel_ch">
371 4. Legal Capacity in Relation to Children/Young People
371 </h2>
372 <h3>
372 4.1 Age 16 Years and above - Mental Capacity Act 2005
372 </h3>
373 <p>
373 The Mental Capacity Act 2005 provides a statutory framework for people who lack capacity to
make decisions for themselves. The accompanying Code of Practice provides guidance to
anyone who is working with and/or caring for people who may lack capacity to make particular
decisions.
373 </p>
374 <p>
374 A person's capacity (or lack of capacity) refers specifically to their capacity to make a
particular decision at the time it needs to be made and the lack of capacity to make a
decision is caused by an impairment or disturbance that affects how the mind or brain works.
374 </p>
375 <p>
375 <span class="bold">
375 From the age of 16 years
375 </span>
375 , the Mental Capacity Act 2005 applies. Everyone working with (or caring for) any young
person from the age of 16 who may lack capacity
375 <span class="bold">
375 must
375 </span>
375 comply with the Mental Capacity Act and its associated Code of Practice.
375 </p>
376 <p>
376 The Mental Capacity Act applies whenever:
376 </p>
377 <ul>
378 <li>
378 There are doubts over the ability of a young person (from the age of 16) to make a
particular decision at a particular time; and
378 </li>
379 <li>
379 The young person has an impairment of, or a disturbance in the functioning of the mind or
brain.
379 </li>
380 </ul>
381 <p>
381 Section 3 of the Mental Capacity Act says that a young person (from the age of 16) is able
to make their own decision if they can do
381 <span class="bold">
381 all
381 </span>
381 of the following four things:
381 </p>
382 <ol>
383 <li>
383 Understand information given to them;
383 </li>
384 <li>
384 Retain that information long enough to be able to make the decision;
384 </li>
385 <li>
385 Weigh up the information available to make the decision; and
385 </li>
386 <li>
386 Communicate their decision.
386 </li>
387 </ol>
388 <p>
388 For further information, see
388 <a href="https://www.proceduresonline.com/resources/cs_mca/p_mental_capacity.html#intro"
target="_blank" rel="noopener">
388 Mental Capacity Procedure
388 </a>
388 .
388 </p>
389 <h3>
389 4.2 Below 16 Years - Gillick Competence
389 </h3>
390 <p>
390 Children and young people
390 <span class="bold">
390 below the age of 16 years
390 </span>
390 may be Gillick Competent to give consent.
390 </p>
391 <ul>
392 <li>
392 The determination of a child's competence must be decision-specific and child-specific;
392 </li>
393 <li>
393 Just because the child lacks competence in one context does not mean they lack it in
another;
393 </li>
394 <li>
394 The assessment of competence must be made on the current evidence;
394 </li>
395 <li>
395 The child should be of sufficient intelligence and maturity to:
396 <ol style="list-style-type:lower-roman">
397 <li>
397 Understand the nature and implications of the decision and the process of implementing
that decision;
397 </li>
398 <li>
398 Understand the implications of not pursuing the decision;
398 </li>
399 <li>
399 Retain the information long enough for the decision-making process to take place;
399 </li>
400 <li>
400 Weigh up the information and arrive at a decision;
400 </li>
401 <li>
401 Communicate that decision.
401 </li>
402 </ol>
403 </li>
404 </ul>
405 <span class="bold">
405 Note
405 </span>
405 :- Gillick competence is concerned with determining a child's capacity to consent. Fraser
guidelines are used specifically to decide if a child can consent to contraceptive or sexual
health advice and treatment.
405 </div>
406 <div class="section1">
406 </div>
412 <div class="section">
413 <h2 id="lac">
413 5. Children in Care
413 </h2>
414 <h3>
414 5.1 Delegation of Authority to Carers
414 </h3>
415 <p>
415 Decisions relating to Children in Care are likely to fall into three broad areas:
415 </p>
416 <ul>
417 <li>
417 Day-to-day parenting, e.g. routine decisions about health/hygiene, education, leisure
activities;
417 </li>
418 <li>
418 Routine but longer term decisions, e.g. school choice;
418 </li>
419 <li>
419 Significant events, e.g. surgery.
419 </li>
420 </ul>
421 <p class="bold">
421 Principles:
421 </p>
422 <ul>
423 <li>
423 Authority for day-to-day decision making about a Child in Care should be delegated to the
child's carer(s), unless there is a valid reason not to do so*;
423 </li>
424 <li>
424 A child's Placement Plan should record who has the authority to take particular
decisions about the child. It should also record the reasons where any day-to-day decision
is not delegated to the child's carer;
424 </li>
425 <li>
425 Decisions about delegation of authority should take account of the child's views, and
consideration should be given as to whether the child is of sufficient age and
understanding to take some decisions themselves.
425 </li>
426 </ul>
427 <p class="tiny_text">
427 *'The carer' means the foster carer or registered manager of the children's home where the
child resides.
427 </p>
428 <p>
428 For further information please refer to your
428 <a href="p_del_auth_fc_resid.html">
428 Delegation of Authority to Foster Carers and Residential Workers Procedure
428 </a>
428 .
428 </p>
429 <h3>
429 5.2 Consent to Health Care Assessments
429 </h3>
430 <p>
430 A valid consent will be necessary for a Health Care Assessment. Who is able to give this
consent will depend on the age and understanding of the child. In the case of a very young
child, the local authority as corporate parent can give the consent. An older child with
mental capacity may be able to give their own consent.
430 </p>
431 <h4>
431 Young people aged 16 or 17
431 </h4>
432 <p>
432 Young people aged 16 or 17 with mental capacity are presumed to be capable of giving (or
withholding) consent to their own medical assessment/treatment, provided the consent is
given voluntarily and they are appropriately informed regarding the particular intervention.
If the young person is capable of giving valid consent, then it is not legally necessary to
obtain consent from a person with Parental Responsibility.
432 </p>
433 <h4>
433 Children under 16 – 'Gillick Competent'
433 </h4>
434 <p>
434 A child of under 16 may be Gillick Competent to give (or withhold) consent to medical
assessment and treatment, i.e. they have sufficient understanding to enable them to
understand fully what is involved in a proposed medical intervention.
434 </p>
435 <p>
435 In some cases, for example because of a mental disorder, a child's mental state may
fluctuate significantly, so that on some occasions the child appears Gillick Competent in
respect of a particular decision and on other occasions does not.
435 </p>
436 <p>
436 If the child is Gillick Competent and is able to give voluntary consent after receiving
appropriate information, that consent will be valid, and additional consent by a person with
parental responsibility will not be required.
436 </p>
437 <h4>
437 Children under 16 - Not 'Gillick' Competent
437 </h4>
438 <p>
438 Where a child under the age of 16 lacks capacity to consent (i.e. is not Gillick Competent),
consent can be given on their behalf by any one person with Parental Responsibility. Consent
given by one person with Parental Responsibility is valid, even if another person with
Parental Responsibility withholds consent. (However, legal advice may be necessary in
such cases). Where the local authority, as corporate parent, is giving consent, the
ability to give that consent may be delegated to a carer (foster carer or registered manager
of the children's home where the child resides) as a part of 'day-to-day parenting', which
will be documented in the child's Placement Plan (please refer to your Delegation of
Authority to Foster Carers and Residential Workers Procedure).
438 </p>
439 <p>
439 For further information on consent, see
439 <a
href="https://www.gov.uk/government/publications/reference-guide-to-consent-for-examination-
or-treatment-second-edition" target="_blank" rel="noopener">
439 Department of Health and Social Care Reference Guide to Consent for Examination or
Treatment
439 </a>
439 .
439 </p>
440 <h3>
440 5.3 Deprivation of Liberty of a Child/Young Person
440 </h3>
441 <p>
441 Local authorities need to consider whether any children in need, or looked-after children,
(especially those in foster care or in a residential placement), are subject to restrictions
which amount to a Deprivation of Liberty and, if so, how this is to be authorised.
441 </p>
442 For further information see
442 <a href="https://www.proceduresonline.com/resources/dols/p_dols.html" target="_blank"
rel="noopener">
442 Deprivation of Liberty Procedure
442 </a>
442 .
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