The recent judgment in the case of Re S (a child) and Re W (a child) [2023] EWCA Civ 1 has changed the way that local authorities can use the provisions for voluntarily accommodating children under s.20 (Children Act 1989). The judgment considers two appeals against the Orders of two local Judges, HHJ Coffey in Re W and HHJ Atkins in Re S.
Section 20 (CA 1989) provides that parents can enter into a written agreement for their children to be voluntarily accommodated by the local authority both outside of, and during care proceedings. Historically, local authorities were considered to be misusing their powers under section 20 by allowing the arrangements to carry on for too long without seeking judicial oversight and by not obtaining fully informed consent from the parents. The clear and well understood expectation was that local authorities should issue care proceedings if it was anticipated that the voluntary accommodation would be needed for longer than a few weeks.
Until the decision in Re S and Re W, the leading authority on the use of s.20 accommodation was Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 in which Sir James Munby P provided guidance that s.20 accommodation should be a short-term solution only, and it should not be used as a means for Local Authorities to circumvent their duties to secure long-term care arrangements for children with Care Orders. At para [171] of his judgment he says:
“The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.”
In March 2021, the Public Law Working Group (PLWG) reviewed the use of s.20 accommodation and found that the decline in the use of s.20 placements following Re N was one of the contributing factors for the increase in public law court applications. The PLWG concluded that s.20 can be appropriate in some circumstances, and recommended that where it is used, the purpose and duration should be agreed at the outset and regularly reviewed.
In both Re S and Re W, the appellants were parents who were appealing against Care Orders; in both cases the appellants were agreeing to the proposed care plans and placements but contending that it was appropriate to accommodate their children under s.20 on a long-term basis. In both cases, the children had suffered or were at risk of suffering harm in the care of their parents, and both were settled in long-term placements which were meeting their respective needs.
In her judgment in Re S and Re W, King LJ explores the interplay between Care Orders and s.20 accommodation. Both options provide a statutory framework for placing a child in local authority care, however a Care Order is a more draconian and interventionalist option. A Care Order gives the local authority overriding parental responsibility for the child, meaning that they can override the parents’ decision making for their child.
In contrast to care orders, S.20 accommodation of a child conveys a partnership between the parent and the local authority in decision making for the child, and should work well if the parent and local authority agree on the best way forward for a child. Arguably the biggest risk of a placement under s.20 is that the child 20 can be removed at any time, without notice, by a parent with parental responsibility.
Crucially King LJ sets out that there is no statutory time limit for how long a child can be accommodated under s.20, and therefore if the child’s parents are supporting the placement and there is little risk of the parent disrupting the placement then the least interventionalist approach should be used. In both cases, King LJ held that it would be disproportionate to make a Care Order primarily to grant the local authority parental responsibility to mitigate a mere risk that a parent may remove the child from the placement, or that the child would develop challenging behaviour in the future.
The case of Re S (a child) and Re W (a child) [2023] EWCA Civ 1 will be an important judgment for local authorities and family courts as it adds an extra need for consideration of the ‘No Order’ principle prior to and during care proceedings.
