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Children Act 1989 – Section 20 and consent

25 July 2018

The Supreme Court decision in Williams and another v Borough of Hackney [2018] UKSC 37 was an example of the local authority getting Section 20 of the Children Act 1989 right. The judgment suggests now is a good time to reflect on the financial consequences for local authorities should things go wrong under Section 20.

The principles that local authorities should consider are set out in our piece on Section 20 and consent.

The table below helpfully sets out some of the key cases in which damages were awarded. Most cases relate to the delay in issuing proceedings and a lack of parents’ involvement in the decision making process. All claims were brought under the European Convention of Human Rights.

Issues Damages awarded
H (A Child: Breach of Convention Rights) [2014] EWFC 38
Concerns arose around the way that the local authority deal with the case prior to proceedings being issued. The local authority:
  • did not explore the issues of parents’ capacity
  • did not provide a proper explanation of the options available to the parents
  • treated the placement as an 'informal arrangement' but it was clear that the local authority had initiated contact with the carers and made all the relevant arrangements
  • delayed assessments
  • took almost a year before they issued proceedings
£6,000 for each parent
Northamptonshire County Council v S and others [2015] EWHC 199 (Fam)
There was a 2 month delay in proceedings being issued.

£12,000 for the child
£4,000 for the mother
£1,000 for the maternal grandparents

RE: AS, London Borough of Brent v MS, RS and AS [2015] EWFC B150
The child was accommodated for a month. Mother had been sectioned and there were doubts about her ability to consent.
£3,000 award to the mother
Medway Council v M and T [2015] EWFC B164
Mother was detained under the Mental Health Act and the child was accommodated. The local authority obtained consent after six months, incorrectly taking the view that there was no need to issue proceedings as there was no-one to exercise parental responsibility and the mother was not requesting the child’s return. There were doubts about the validity of the consent that was obtained. Proceedings were not issued for two years. £20,000 awarded to both the mother and the child
X, Y and Z v West Sussex County Council [2016] EWFC B44

The s.20 considerations to note were:

  • the local authority’s failure to issue care proceedings for two and a half years.
  • that the local authority purported to exercise parental responsibility for the children for almost two and a half years when they did not hold parental responsibility for them.
  • that the Independent Reviewing Officer failed to challenge the conduct of the local authority robustly enough.

£20,000 for each child
£5,000 for the mother
(£45,000 in total)

Kent County Council v M and K (Section 20: Declaration and Damages) [2016] EWFC 28
The child was accommodated under s.20 in December 2011. Care Proceedings were issued in November 2015.

Following the case of CN, we have seen more claimants’ solicitors turning their mind to Human Rights Act claims.

In historical claims, we should be alert to the figures that have been awarded by the domestic courts. Those practitioners within the local authority picking up claims may benefit from reminding those dealing with care matters about the costs implications if the process to obtain Section 20 agreement is not followed properly.

The final paragraph of Lady Hale’s judgment in the Hackney case is a useful quick reference:

“In sum, there are circumstances in which a real and voluntary delegation of the exercise of parental responsibility is required for a local authority to accommodate a child under section 20, albeit not in every case (see para 40 above). Parents with parental responsibility always have a qualified right to object and an unqualified right to remove their children at will (subject to any court orders about where the child is to live). Section 20 gives local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it does. It is obviously good practice in every case that parents should be given clear and accurate information, both orally and in writing, both as to their own rights and as to the responsibilities of the local authority, before a child is accommodated under section 20 or as soon as practicable thereafter.”

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In Rogerson v Bolsover District Council (2019) the Court of Appeal found against a local authority landlord pursuant to the Defective Premises Act 1972 following a finding of an inadequate inspection regime.

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