Some interesting case law regarding s. 20’s has hit the scene and it is worth reminding ourselves exactly what s. 20 is, and what it means for our clients:
To remind ourselves of the law, and for ease, I have written out only the parts of the section which are generally what are needed to be referred to in cases where a s. 20 agreement is used. I have also emphasised the parts of the guidance which are probably the most pertinent in relation to the actual agreement…….the highlights in bold and the underlining are mine:
The Children Act 1989 – S. 20 (provision of accommodation for children: general
(1). Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –
- there being no person who has parental responsibility for him;
- his being lost or having been abandoned; or
- The person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care
(4). A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare
(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare –
- ascertain the child’s wishes and feelings regarding the provision of accommodation; and
- Give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain
(7) a local authority may not provide accommodation under this section for any child if any person who –
- has parental responsibility for him; and
- Is willing and able to –
- provide accommodation for him; or
- Arrange for accommodation to be provided for him
(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provide by or on behalf of the local authority under this section
(9) Subsections (7) and (8) do not apply while any person –
- who is named in a child arrangements orders as a person with whom the child is to live;
- who is a special guardian of the child; or
- who has care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children,
Agrees to the child being looked after in accommodation provided by or on behalf of the local authority.
(10) Where there’s is more than one such person as is mentioned subsection (9), all of them must agree(11). Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section.
There has been an amendment under ACA 2002 – s 139(1), (3), Sch 3, paras 54, 59, Sch 5; CA 2004 s 53; CFA 2014, s 12 Sch 2; SI 2016/413 –
The local authority has no power to transfer accommodated child out of residential care and into foster care with permission of natural parents.
Which means that the local authority has no power where a child is being accommodated under a voluntary arrangement with his natural parents to transfer a child from a residential institution to foster care without the permission of the natural parents; parental responsibility includes the right to decided where a child lives. – helpful case (R v Tameside Metropolitan Borough Council ex parte J  1 FLR 942, QBD)
There is a need for care to be taken by the local authority when using CA 1989, s. 20, whilst there are no express statutory guidelines, the observations by Hedley J in Coventry City Council v C, B, CA and CH  COPLR 658 FD gives a list of guidance which should be followed. In particular it highlights that the local authority may wish to approach with great care the obtaining of a s. 20 consent from a mother following the birth of a child, and where there is no immediate danger.
There is also good guidance on the preparation of a document recording the agreement of accommodation of a child under s. 20;
- wherever possible, the agreement of a parent to the accommodation of their child under s. 20 should be properly recorded in writing and evidenced by the parent’s signature;
- The written document should be clear and precise as to its terms, drafted in simple and straightforward language that the particular parent can readily understand;
- The written document should spell out, following the language of s. 20 (8), that the parent can ‘remove the child’ from the local authority accommodation ‘at any time’;
- 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’
Now to the case law:
A court of Appeal decision in London Borough of Hackney v Williams and Another  EWCA Civ 26,  FLR Fam Law 3870 (forthcoming) is a case where the ambit of s. 20 was reviewed by Sir Brian Leveson and it is worth reiterating the points he made at para 34 of that judgment ‘It is not intended to and does not create powers of compulsion’…..that the provision of care and accommodation is ‘voluntary’, that ‘anyone with parental responsibility may at any time remove the child’…
This ‘guidance’ was referred to specifically, and relied upon, by Francis J in Northamptonshire County Council v M and Others  EWHC 997 (Fam). This is a particularly sad case where at the outset in 2013, the Mother, both vulnerable and needy herself, signed a s. 20 statement, the Father was never asked to sign. There was no formal assessment of either parent and neither were threshold criteria met. The child was placed with grandparents, and the local authority behaved as if public proceedings were in place, by imposing times and supervisory restrictions on her contact. They effectively deprived her of her parental responsibility. As early as 2014, a LAC review gave a positive report on the Mother, but the local authority failed to provide any of the recommended support to the Mother and in 2015 they effectively decided that a SGO should be made to the Grandparents. Initially the Mother was unaware of her rights and the authority’s duties, but when she wanted to oppose placement was unable to secure Legal Aid, there being no public law proceedings ongoing.
As late as 2016 an interim child arrangements order was made in favour of the grandparents.
It created a dilemma for the Judge in having to balance the case of the Mother, now in a stable relationship, who was seeking the return of the child to her care, against the horrendous delay, and a clear example of where the local authority had misused its powers, in so much as they appeared to have taken the view that when the Mother signed the s. 20 statement the then ‘placement’ of the child with the grandparents was ‘formalised’ and therefore ‘legitimised’. In real terms the local authority were behaving as if the proceedings were public law proceedings when in reality they were more like private law proceedings, and had probably acted unlawfully in removing the child from the mother, had subsequently left the child in the position of being in a household where no one had parental responsibility for him, and therefore denied him the protections of the Children Act or any proper scrutiny. They failed to issue care proceedings or carry out any rehabilitation planning. It was observed by the Judge, that if the Mother had known that the authority could not prevent her from exercising her parental responsibility she may well have taken a very different course of action, and at a much earlier stage.
In this instant case the Judge decided, that in the best interests of the child, as things currently stood, was an SGO placement with the grandparents, the time that had past making it more of a risk to the child in changing the status quo.
As part of the application there was a Human Rights Act claims on behalf of the parents and the child. The Court at this time while being satisfied that many, if not all, of the pleaded claims against the local authority were made out, had insufficient time to determine the claims. The local authority was urged to enter into negotiations forthwith to resolve damage claims, but a future hearing would be fixed if these could not be agreed. Watch this space!!.
Two points which I think bear highlighting are…..delay and the clear egregious behaviour of the local authority. Both of these actually determined the outcome. But if we are to stop such an outcome…..we must all be clear that any s. 20 agreement signed by our clients, is written out in clear language and be very clear as to the rights of those with parental responsibility, which must be unfettered. And secondly keep a watchful eye over the behaviour of the local authority where a s. 20 is in place to ensure that the right steps are taken and followed, delay not being an option, and also notice taken of any subsequent reviews (LAC) with their recommendations being followed.