“Section 20 accommodation” is a term used in care proceedings which describes a voluntary arrangement between parents and a local authority, whereby the parents give consent for their child to be accommodated by the local authority. This is pursuant to Section 20(1) of the Children Act 1989, which expressly states that local authorities indeed have a duty to provide this service to children in need:
- 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—
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) 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.
The other hallmark of an agreement for Section 20 accommodation is that parents can withdraw their consent at any time.
Previous caselaw set out the following principles regarding Section 20 use:
- Families should not be subject to disproportionate state interference in their family lives, in this case in the form of unnecessary care orders (Re H-W[2022] UKSC 17, [2022] 1 WLR 3243).
- Local authorities should not use long-term Section 20 accommodation as a prelude to care proceedings (Re N (Children) (Adoption: Jurisdiction)[2015] EWCA Civ 1112, [2017] AC 167).
- The court must consider all placement options even if they are not realistic (Re B-S (Children) (Adoption Order: Leave to Oppose)[2013] EWCA Civ 1146, [2014] 1 FLR 1035).
- There is no statutory or otherwise time limit on how long Section 20 accommodation should continue (Williams v Hackney[2018] UKSC 37, [2019] AC 421).
The recent case of Re S and Re W [2023] EWCA Civ 1 gave some welcomed guidance to the above. The headline takeaway from the Court of Appeal’s decision is that local authorities can accommodate children under Section 20 in the long-term, provided that the placement is supported by the parents and meets the needs of the child. Without the addition of King LJ’s judgment in Re S & Re W, the application of Williams v Hackney was a technical one rather than any endorsement of using Section 20 in the long-term.
King LJ confirmed at paragraph 62: “For my part, I can see no inhibition on a section 20 order being made in appropriate circumstances for a longer period of accommodation provided that proper consideration is given to the purpose of the accommodation and that the regular mandatory reviews are carried out.”
She continued at paragraph 63: “…In my judgement, the statute is clear in its terms; the Supreme Court have given careful consideration to the role of section 20 in Williams v Hackney LBC and the PLWG has only recently given detailed consideration to section 20 against the backdrop of public law proceedings as a whole. These strands together should serve to disabuse all those involved with the provision of services for children in need of continuing support of the notion that a section 20 order can only properly be utilised to provide short term accommodation for a child”.
And at paragraph 66: “The judge did not fall into the trap of proceeding on the basis that a section 20 order should only be made for a limited duration and carefully considered whether an order should or should not be made on the facts of the case. He did however, in my judgement, fall into error in his assessment of the risk presented by the father to the stability of S and to his placement. This in turn resulted in his making what was in my view, a disproportionate order.”
She went on to conclude at paragraph 84: “I would simply conclude by saying that each of these two cases must be viewed in the context in which they have come before this court, that is to say in relation to children who are settled in long-term placements which are meeting their respective needs in circumstances where both the placements and the accompanying care plans are supported by the parents.”
King LJ did not give any further timing restrictions regarding Section 20 use.
Section 20 gives a local authority delegated parental responsibility compared with the statutory parental responsibility brought about by care orders and Section 33 of the Children Act 1989. A key question that should now arise from the Re S & Re W judgment is should judicially-endorsed long-term Section 20 accommodation arrangements begin to suffice as the alternative to issuing care proceedings? Local authorities will now likely have to justify, as they could not in Re S, what more the making of care orders would add. Not properly considering a long-term Section 20 accommodation could well go against the no order principle.
