An interesting case has arisen where ‘misuse and abuse’ of the use of a s. 20 agreement has occurred.
Let’s first remind ourselves of the main case on this subject with which we are now familiar, Re N (Adoption:Jurisdiction)  EWCA Civ 1112,  1 FLR 621, in which the President described the delay in issuing care proceedings, and the use of accommodation under s. 20 as an alternative, was described as a ‘misuse’ by the Local Authority of their statutory powers. He went on to say that s. 20 did have a role to play as a short term measure pending care proceedings, but its use as a long term measure was ‘wholly unacceptable”. (Similar cases are: Re W (Parental Agreement with Local Authority)  EWCA Civ 1065,  1 FLR 949; Re A (Application for Care and Placement Orders: Local Authority Failings)  EWFC11 1 FLR 1; Northamptonshire CC v AS and Others  EWHC 199 (Fam)) all of which were cited in Re N.
In this latest case: Herefordshire Council v AB  EWFC 10, Mr Justice Keehan was sitting in the Family court on 1st February 2018 and in giving his judgment he described this case as representing ‘the most egregious abuses of s. 20 accommodation’ he had ever encountered.
Briefly, this instant case was concerned with two unconnected children, both under the same Local Authority. The eldest child was accommodated by the Local Authority under a s. 20 of The Children Act 1989, when he was 8 years of age in 2009. This accommodation was at the request of his Mother after incidents of domestic violence within the home. Although the s. 31 threshold criteria were met at that time, this s. 20 accommodation was for the child to remain under this, whilst other possibilities were being explored. There were concerns raised over the following 8 years about delay in permanence being sought for this boy. It was of note that the Mother withdrew her consent in 2010, but he was not returned to her care. He was with dedicated foster carers and in 2013 the mother agreed to his remaining in this accommodation.
The second, and younger child, was a child born with significant disabilities to a 14 year old Mother. This child was accommodated, supposedly with Mother’s consent, under a s. 20, and he then remained with foster carers for a further 9 years.
It was at this stage that Herefordshire Council brought proceedings before the Court.
The final outcome for these children was that an SGO was made in relation to the elder boy to his foster carers, and a placement was secured for the younger child pending an IRH to determine his future.
The Judgment was highly critical of the Local Authority and refused their submission for anonymity directing that a public judgment was necessary, as ‘transparency and openness were important; the public had a legitimate interest in knowing what public bodies do; the failings were extremely serious and in flagrant breach of standard good practice.’
The relevant and significant parts of the Judgment are:
- Although there were repeated occasions over many years when it was accepted that legal advice should have been sought and/or care proceedings issued with respect to both boys, the authority’s inertia was inexplicable. Such gross failings were intolerable; the boys, and their parents, had been denied a voice in their future care and been denied the opportunity for clear and focussed planning to be undertaken and endorsed by a court. The issue of care proceedings would have enabled a decision to be made about their status and future in a structured and time-limited manner.
- The importance of obtaining a parent’s informed consent to the accommodation of a child and returning the child if and when consent was withdrawn were emphasised by the President in Re N (Adoption: Jurisdiction} EWCA Civ 1112,  1 FLR 621. In the instant case the authority had given no consideration at all as to whether the 14 year old Mother had been capable of giving a valid consent and that omission greatly compounded their failings with respect to the younger child. As she grew older little or no consideration was given to whether she could or should play a greater role in the child’s life.
- In relation to the elder child, the authority had acted unlawfully following the Mother’s withdrawal of consent, in retaining him under s. 20 and advising her to seek legal advice if she wished him returned to her care. That was a misuse of the authority’s powers and they should have made immediate arrangements to return the boy to his Mother.
s. 20 of The Children Act 1989 is not a substitute for a Care Order
Things to remember…under a s. 20 parental responsibility does not transfer to the Local Authority, and parental consent is always required. The child has to be returned if the consent is withdrawn, and the Court has no role or ability to control planning. Also under a s. 20 no independent child’s guardian is appointed.
S. 20 is not a substitute for a care order. It can and should be used in situations where it would be disproportionate or unnecessary to issue public law proceedings. However if there is an issue of the child being at risk of harm and it is considered that the child needs to be removed by any route, be this under an emergency protection order or consent under a s. 20 it is incumbent and imperative that care proceedings are issued without delay.
There are a number of reasons why a parent may request assistance with accommodation, for example; when respite is needed, an unexpected domestic crisis has arisen, or there are behavioural problems with a child. This would be where some temporary care is required but the threshold criteria under s. 31 is not met. If threshold is met, a Care Order must be applied for.
What this demonstrates is that it is incumbent on all of us who represent parents to be vigilant in ensuring that the Local Authority follows the correct procedure when a child/children are accommodated under a s. 20 agreement. To ensure that first, proper consent is obtained and what the clear duty of the Local Authority is, if this consent is withdrawn. We must at all times remain vigilant to ensure that a s. 20 is not misused. If there is a risk of significant harm, and the threshold criteria under s. 31 is met, then it is incumbent on the Local Authority to issue proceedings without delay.