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Children Act 1989 – Section 20 and consent

25 July 2018

Williams and another v London Borough of Hackney [2018] UKSC 37

Section 20 of the Children Act 1989 provides the local authority with the power to provide accommodation for children without a court order when they do not have somewhere suitable to live. It is widely known as voluntary accommodation because the parents must agree to the child being accommodated. The question of consent may not be straightforward as the statute does not expressly require the local authority to obtain positive agreement from the parents. Practitioners should always refer to the guidance in two judgments. The first from Munby J (as he was then) in R (G) v Nottingham City Council [2008] EWHC 152 (Admin) and the second Hedley J in Coventry City Council v C, B, CA and CH [2012] EWHC 2190. These cases set out steps that local authorities should take to obtain consent and determine whether it has been obtained fairly and proportionately.

Consent was revisited again this month by the Supreme Court in the case of Williams. In this case, the Williams’ children had been removed from the care of their parents on 5 July 2007 under police protection powers (Section 46 Children Act 1989) following allegations of assault and neglect. The parents were subject to bail conditions which included a condition that the children could not have unsupervised contact with them. The local authority then accommodated the children under Section 20 when the police protection period ended. The parents signed a 'safeguarding agreement' on 6 July 2007. Soon after, the parents objected to the children being accommodated beyond 23 July 2007. The children were returned to parents on 11 September 2007, after the bail conditions were lifted. The parents were charged and indicted in October 2007 but the criminal case was discontinued a year later.

The parents then entered into a six year process of complaining about how the local authority had handled their case. In April 2013, the Local Government Ombudsman found that Hackney had failed to record the parents’ consent, nor had the local authority explained the process of Section 20 accommodation.

Consequently the parents issued proceedings for damages for, including, amongst other things a breach under Article 8 of the European Convention on Human Rights (ECHR). At the first instance, the High Court dismissed actions for misfeasance, discrimination and negligence but made findings against the local authority for failure to comply with statutory duties under the Children Act 1989. It held the authority was liable for damages under Article 8 ECHR.

The local authority appealed. The Court of Appeal reversed the decision of the High Court, and this has been upheld by the Supreme Court. Lady Hale gave the substantive judgment. Paragraphs 53 – 64 apply the law to the facts of this case.

The court found against the Williams on the basis that the lawfully imposed bailed conditions (which the local authority had no control over) meant that the interference with the family’s rights were also lawful. Notably, the parents had not sought to vary the terms of their bail conditions at any point and this was the main bar to the return of the children. Furthermore the parents had not complained about the Police’s conduct. It was noted that the parents were also in receipt of legal advice and so were in a position to seek legal advice on the issue of Section 20. With respect to the latter it had been recorded that the local authority did not issue care proceedings but had sought to work with the parents to resolve the problems. The parents’ solicitors’ were, “trying to achieve the return of the children as quickly as possible on a collaborative basis, rather than to push the Council into issuing care proceedings.”

It all goes to show that there is no one-size fits all approach for social care damages claims. Each case really does depend on its own facts and a series of balancing exercises. Essentially, it is important to remember that even though, Section 20 is referred to as 'voluntary accommodation' the parents (or those with parental responsibility) must agree to the child being accommodated. The local authority is not simply providing accommodation but is also responsible for providing care.

What should local authorities think about when taking a child into their care under Section 20?

Paragraph 64 of the Supreme Court judgment reiterates the guidance that local authorities should follow (See also paragraphs 38 -49).

Back in 2015, in Re N (Children)(Adoption: Jurisdiction) EWCA Civ 1112 the then President of the Family Division, Sir Munby set out guidance for good practice. We remind local authorities of matters to consider when seeking Section 20 agreement:

  • there must be informed consent. Remember, there are no court orders in place which allow the local authority to make decisions about the child. So it is important that everyone understands what is happening, what choices are available to the parents and the consequences of consent or refusal
  • following on from this, the parents must have capacity, as defined at Section 3 of the Mental Capacity Act 2005 to give consent. Local authorities should consider what the physical and psychological state of the parents are, have they been encouraged to seek advice? Is removal necessary? Would it be fairer to enter into proceedings? If capacity is in doubt or the local authority feel that a parent is not fully informed of the relevant facts/choices/consequences of Section 20, then no attempts to seek consent to Section 20 should be pursued
  • the Act does not say that the agreement to Section 20 needs to be set out in writing however, as set out in R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin) [2008] para 53, “a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parents’ signature”
  • Section 20 should not be allowed to drift. Section 20 should be kept under regular review and children must not be subjected to it for months. However, in the case of Williams v Hackney, there was little the local authority could do to return the children. There were bail conditions in place which impacted upon the parents’ contact with the children. It was positive nonetheless, that the local authority was seen to be working collaboratively with the parents despite the ongoing police investigation and allegations raised
  • the parents must be informed of their right to withdraw consent at any time. When consent is withdrawn then the local authority should return the child immediately. Failure to do so could expose the local authority to a civil action being pursued by the parent or even criminal proceedings. The case of Williams however, highlights that in certain circumstances this may not be possible. The bail conditions meant that the parents could not object as they were being prevented from providing the children with a home. So, Section 20 continued to be lawful.

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